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As filed with the Securities and Exchange Commission on May 16, 2000
Registration No. 333-91719
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
JABIL CIRCUIT, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 38-1886260
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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10560 Ninth Street North
St. Petersburg, Florida 33716
(727) 577-9749
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Robert L. Paver, Esq.
Secretary and General Counsel
Jabil Circuit, Inc.
10560 Ninth Street North
St. Petersburg, Florida 33716
(727) 577-9749
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Chester E. Bacheller, Esq.
Holland & Knight LLP
400 North Ashley Drive
Suite 2300
Tampa, Florida 33602
Phone: (813) 227-6431
Fax: (813) 229-0134
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the
same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 16, 2000
PROSPECTUS
$750,000,000
JABIL CIRCUIT, INC.
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK,
DEPOSITARY SHARES AND WARRANTS
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When we offer securities, we will provide you with a prospectus supplement
describing the terms of the specific issue of securities, including the
offering price of the securities. The prospectus supplements may also add,
update or change information contained in this prospectus. You should read this
prospectus and any supplements carefully before you invest.
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Our common stock is traded on the New York Stock Exchange under the symbol
"JBL."
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INVESTING IN THESE SECURITIES INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 7 OF THIS PROSPECTUS.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is , 2000.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ABOUT THIS PROSPECTUS.......................................................3
JABIL CIRCUIT, INC..........................................................3
FORWARD-LOOKING STATEMENTS..................................................6
RISK FACTORS................................................................7
USE OF PROCEEDS............................................................13
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS...........14
THE SECURITIES.............................................................15
DESCRIPTION OF DEBT SECURITIES.............................................15
DESCRIPTION OF CAPITAL STOCK...............................................43
DESCRIPTION OF DEPOSITARY SHARES...........................................45
DESCRIPTION OF WARRANTS....................................................48
PLAN OF DISTRIBUTION.......................................................49
LEGAL MATTERS..............................................................51
EXPERTS....................................................................51
WHERE YOU CAN FIND ADDITIONAL INFORMATION..................................51
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................51
</TABLE>
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You should rely only on the information contained in this prospectus
or any supplement. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are not making an offer to sell
these securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information in this prospectus or any supplement
is accurate as of any date other than the date on the front of those documents.
Our business, financial condition, results of operations and prospects may have
changed since that date.
The information in this prospectus or any supplement may not contain
all of the information that may be important to you. You should read the entire
prospectus or any supplement, as well as the documents incorporated by
reference in the prospectus or any supplement, before making an investment
decision.
"Jabil Circuit" and the Jabil logo are trademarks of Jabil. This
prospectus also refers to trademarks and tradenames of other companies.
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ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement on Form S-3 that
we filed with the Securities and Exchange Commission utilizing a "shelf"
registration process. Under this shelf process, we may, from time to time, sell
any combination of securities described in this prospectus in one or more
offerings. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any applicable prospectus supplement together with additional information
described below under the heading "Where You Can Find More Information."
When used in this prospectus and any prospectus supplement, the terms
"Jabil", "we", "our", "us" and the "Company" refer to Jabil Circuit, Inc. and
its subsidiaries.
JABIL CIRCUIT, INC.
We are one of the leading worldwide independent providers of
electronic manufacturing services ("EMS"). We design and manufacture electronic
circuit board assemblies and systems for major original equipment manufacturers
("OEMs") in the communications, computer peripherals, personal computer,
automotive and consumer products industries. We serve our OEM customers with
dedicated work cell business units that combine high volume, highly automated
continuous flow manufacturing with advanced electronic design and design for
manufacturability technologies. Our customers currently include industry
leaders such as Cisco Systems, Inc., Gateway 2000, Inc., Hewlett-Packard
Company, Johnson Controls, Inc. and Quantum Corporation. For the fiscal year
ended August 31, 1999, we achieved net revenues of approximately $2.2 billion
and net income of $84.8 million (restated to include the effect of the
subsequent "GET Merger" (as defined below) that was accounted for as a pooling
of interests). For the six months ended February 29, 2000, we achieved net
revenues of approximately $1.5 billion and net income of approximately $60.4
million.
Subsequent to August 31, 1999, we completed three business
combinations. On September 1, 1999, we purchased EFTC Services, Inc. (the "EFTC
Acquisition"), an electronic product service and repair business. Operating as
Jabil Global Services, Inc., we continue to offer repair and warranty services
for existing and future customers from our hub-based operations in Memphis,
Tennessee; Louisville, Kentucky; and Tampa, Florida.
The acquisition was recorded as a purchase.
On September 13, 1999, we completed a merger with GET Manufacturing,
Inc. (the "GET Merger"), a China-based electronics manufacturing services
provider. We believe that the acquisition establishes Jabil as a leading EMS
provider in China. The operations currently service customers in the computer
peripherals, medical instruments, telephony, set-top box and consumer market
industries. The transaction was accounted for as a pooling of interests and,
accordingly, our historical consolidated financial statements have been
restated to include the accounts and results of operations of GET
Manufacturing, Inc.
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On February 1, 2000, we acquired the net assets of Bull Information
Technology, an electronic manufacturing service provider. The business
currently operates from leased facilities in the City of Contagem, State of
Minas Gerais, in Brazil. We are acquiring approximately 30 acres in Contagem
and will be constructing a new facility to replace the currently leased
operations.
The EMS industry has experienced rapid growth over the past several
years as an increasing number of OEMs have outsourced their manufacturing
requirements. OEMs are turning to outsourcing in order to reduce product cost,
achieve accelerated time-to-market and time-to-volume production, access
advanced design and manufacturing technologies, improve inventory management
and purchasing power, reduce their capital investment in manufacturing
facilities, and achieve parallel manufacturing of the same product throughout
the world. We believe that further growth opportunities exist for EMS providers
to penetrate the worldwide electronics markets.
We offer our customers complete turnkey EMS solutions that are
responsive to their outsourcing needs. Our work cell business units are capable
of providing:
- integrated design and engineering services
- component selection, sourcing and procurement
- automated assembly
- design and implementation of product testing
- parallel global production
- systems assembly and direct order fulfillment services
- repair and warranty services
We currently conduct our operations in facilities that are located in
the United States, China, Italy, Malaysia, Mexico, Brazil and Scotland, and
anticipate completing construction of a new facility in Tiszaujvaros, Hungary
late in 2000. Our parallel global production strategy provides our customers
with the benefits of improved supply-chain management, reduced inventory
obsolescence, lowered transportation costs and reduced product fulfillment
time.
We are focused on expanding our position as one of the leading global
providers of electronic manufacturing services to major OEMs. To achieve this
objective, we will continue implementing the following strategies:
- ESTABLISH AND MAINTAIN LONG-TERM CUSTOMER RELATIONSHIPS. Our
core strategy is to establish and maintain long-term relationships with
leading electronics companies in expanding industries with the size and
growth characteristics that can benefit from highly automated,
continuous flow and global manufacturing. Historically, we have derived
a majority of our growth from existing customers. We focus on
maintaining long-term
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relationships with our customers and seek to expand such relationships
to include additional product lines and services. In addition, we have
a focused effort to identify and develop relationships with new
customers who meet our profile.
- UTILIZE WORK CELL BUSINESS UNITS. Each of our work cell
business units is dedicated to one customer and operates with a high
level of autonomy, utilizing dedicated production equipment, production
workers, supervisors, buyers, planners and engineers. We believe our
work cell business units promote increased responsiveness to our
customers' needs, particularly as a customer relationship grows to
multiple production locations.
- EXPAND PARALLEL GLOBAL PRODUCTION. Our ability to produce the
same product on a global scale is a significant requirement of our
customers. We believe that parallel global production is a key strategy
to reduce obsolescence risk and secure the lowest landed costs while
simultaneously supplying products of equivalent or comparable quality
throughout the world. Consistent with this strategy, we have expanded
our existing Mexican facility, and, as part of the GET Merger, acquired
manufacturing operations in China and Mexico.
- OFFER SYSTEMS ASSEMBLY AND DIRECT ORDER FULFILLMENT. Our
systems assembly and direct order fulfillment services allow our
customers to reduce product cost and risk of product obsolescence by
reducing total work-in-process and finished goods inventory. We offer
these services at all of our manufacturing locations.
- PURSUE SELECTIVE ACQUISITION OPPORTUNITIES. An increasing
number of OEMs are divesting internal manufacturing operations to EMS
providers. In many of these situations, the OEM enters into a customer
relationship with the EMS provider. Our acquisition strategy is focused
on obtaining from OEMs manufacturing operations with consistent growth
and experienced management teams, and opportunities for long-term
outsourcing relationships.
Our principal executive offices are located at 10560 Ninth Street
North, St. Petersburg, Florida 33716, and our telephone number is (727)
577-9749. Our website is located at www.jabil.com. Information contained in our
website is not a part of this prospectus or the documents incorporated by
reference in this prospectus.
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FORWARD-LOOKING STATEMENTS
We make "forward-looking statements" within the "safe harbor"
provision of the Private Securities Litigation Reform Act of 1995 throughout
this prospectus, supplements to this prospectus and in the documents we
incorporate by reference into this prospectus. You can identify these
statements by forward-looking words such as "may," "will," "expect,"
"anticipate," "believe," "estimate," "plan" and "continue" or similar words. We
have based these statements on our current expectations about future events.
Although we believe that our expectations reflected in or suggested by our
forward-looking statements are reasonable, we cannot assure you that these
expectations will be achieved. Our actual results may differ materially from
what we currently expect. Important factors which could cause our actual
results to differ materially from the forward-looking statements in this
prospectus or in the documents that we incorporate by reference into this
prospectus are set forth in the "Risk Factors" section of this prospectus, and
elsewhere in this prospectus, supplements to this prospectus and in the
documents that we incorporate by reference into this prospectus.
You should read this prospectus, supplements to this prospectus and
the documents that we incorporate by reference into this prospectus completely
and with the understanding that our actual future results may be materially
different from what we expect. We may not update these forward-looking
statements, even in the event our situation changes in the future. All written
or oral forward-looking statements attributable to us are expressly qualified
by these cautionary statements.
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RISK FACTORS
Before you invest in the securities that we are offering, you should
be aware that the occurrence of any of the events described in this risk factor
section and elsewhere in this prospectus or in a supplement to this prospectus
could have a material adverse effect on our business, financial condition and
results of operations. You should carefully consider these risk factors and the
specific risks set forth under the caption "Risk Factors" in any supplement to
this prospectus, together with all of the other information included in this
prospectus or in a supplement to this prospectus and in documents we
incorporate by reference before you decide to purchase our securities. You may
obtain the information incorporated by reference into this prospectus without
charge by following the instructions in the "Where You Can Find More
Information" section of this prospectus.
OUR OPERATING RESULTS MAY FLUCTUATE
Our annual and quarterly operating results are affected by a number of
factors, including:
- the level and timing of customer orders
- the composition of the costs of sales between materials and
labor and manufacturing overhead
- price competition
- our level of experience in manufacturing a particular product
- the degree of automation used in our assembly process
- the efficiencies achieved by us in managing inventories and
fixed assets
- fluctuations in materials costs and availability of materials
- the timing of expenditures in anticipation of increased
sales, customer product delivery requirements and shortages
of components or labor
The volume and timing of orders placed by our customers vary due to variation
in demand for our customers' products, our customers' inventory management, new
product introductions and manufacturing strategy changes, and consolidations
among our customers. In the past, changes in customer orders have had a
significant effect on our results of operations due to corresponding changes in
the level of overhead absorption. Any one or a combination of these factors
could adversely affect our annual and quarterly results of operations in the
future.
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WE DEPEND ON A LIMITED NUMBER OF CUSTOMERS
For the six months ended February 29, 2000, our four largest customers
accounted for approximately 57% of our net revenue and our twenty largest
customers accounted for 90% of our net revenue. For the six months ended
February 29, 2000, Hewlett Packard Company, Cisco Systems, Inc., Dell Computer
Corporation and Lucent Technologies Inc. accounted for approximately 17%, 16%,
14% and 10% of our net revenue, respectively. We are dependent upon the
continued growth, viability and financial stability of our customers whose
industries have experienced rapid technological change, short product life
cycles, consolidation, and pricing and margin pressures. We expect to continue
to depend upon a relatively small number of customers for a significant
percentage of our net revenue. A significant reduction in sales to any of our
customers, or a customer exerting significant pricing and margin pressures on
us, would have a material adverse effect on our results of operations. In the
past, some of our customers have terminated their manufacturing arrangements
with us or have significantly reduced or delayed the volume of manufacturing
services ordered from us. We cannot assure you that present or future customers
will not terminate their manufacturing arrangements with us or significantly
change, reduce or delay the amount of manufacturing services ordered from us.
If they do, it could have a material adverse effect on our results of
operations. In addition, we generate significant accounts receivable in
connection with providing manufacturing services to our customers. If one or
more of our customers were to become insolvent or otherwise were unable to pay
for the manufacturing services provided by us, our operating results and
financial condition would be adversely affected.
THE VOLUME AND TIMING OF CUSTOMER SALES MAY VARY
The volume and timing of sales to our customers may vary due to:
- variation in demand for our customers' products
- our customers' attempts to manage their inventory
- electronic design changes
- changes in our customers' manufacturing strategy
- acquisitions of or consolidations among customers
Due in part to these factors, most of our customers do not commit to firm
production schedules for more than one quarter in advance. Our inability to
forecast the level of customer orders with certainty makes it difficult to
schedule production and maximize utilization of manufacturing capacity. In the
past, we have been required to increase staffing and other expenses in order to
meet the anticipated demand of our customers. Anticipated orders from many of
our customers have, in the past, failed to materialize or delivery schedules
have been deferred as a result of changes in our customers' business needs,
thereby adversely affecting our results of operations. On other occasions, our
customers have required rapid increases in production, which have placed an
excessive burden on our resources. Such customer order fluctuations and
deferrals have had a material adverse effect on us in the past, and we may
experience such effects in the future.
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WE ARE IN A HIGHLY COMPETITIVE INDUSTRY
The electronic manufacturing services business is highly competitive.
We compete against numerous domestic and foreign manufacturers, including SCI
Systems, Inc., Solectron Corporation, Celestica, Inc. and Flextronics
International. In addition, we may in the future encounter competition from
other large electronic manufacturers that are selling, or may begin to sell,
electronic manufacturing services. Most of our competitors have international
operations and some have substantially greater manufacturing, financial,
research and development, and marketing resources than us. We also face
potential competition from the manufacturing operations of our current and
potential customers, who are continually evaluating the merits of manufacturing
products internally versus the advantages of outsourcing.
OUR RAPID GROWTH MAY BE DIFFICULT TO MANAGE
We have grown rapidly. Our ability to manage growth effectively will
require us to continue to implement and improve our operational, financial and
management information systems; continue to develop the management skills of
our managers and supervisors; and continue to train, motivate and manage our
employees. Our failure to effectively manage growth could have a material
adverse effect on our results of operations.
WE MAY EXPERIENCE RISKS RELATING TO OUR COMPUTER INTEGRATION
We are in the process of installing a new Enterprise Resource Planning
system that will replace the current Manufacturing Resource Planning system and
financial information systems. Any delay in the implementation of these new
information systems could result in material adverse consequences, including
disruption of operations, loss of information and unanticipated increases in
cost.
WE MAY ENCOUNTER DIFFICULTIES WITH ACQUISITIONS
We cannot assure you that we will be able to successfully integrate
the operations and management of our recent acquisitions. Similarly, we cannot
assure you that we will be able to consummate or, if consummated, successfully
integrate the operations and management of future acquisitions. Acquisitions
involve significant risks which could have a material adverse effect on us,
including:
- Financial risks, such as (1) potential liabilities of the
acquired businesses; (2) the dilutive effect of the issuance
of additional equity securities; (3) the incurrence of
additional debt; (4) the financial impact of amortizing
goodwill and other intangible assets involved in any
acquisitions that are accounted for using the purchase method
of accounting; and (5) possible adverse tax and accounting
effects.
- Operating risks, such as (1) the diversion of management's
attention to the assimilation of the businesses to be
acquired; (2) the risk that the acquired businesses will fail
to maintain the quality of services that we have historically
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provided; (3) the need to implement financial and other
systems and add management resources; (4) the risk that key
employees of the acquired businesses will leave after the
acquisition; and (5) unforeseen difficulties in the acquired
operations.
THE AVAILABILITY OF THE MANUFACTURING COMPONENTS WE NEED MAY BE LIMITED
Substantially all of our net revenue is derived from turnkey
manufacturing in which we provide materials procurement. While most of our
significant long-term customer contracts permit quarterly or other periodic
adjustments to pricing based on decreases and increases in component prices and
other factors, we typically bear the risk of component price increases that
occur between any such repricings or, if such repricing is not permitted,
during the balance of the term of the particular customer contract.
Accordingly, certain component price increases could adversely affect our gross
profit margins. Almost all of the products we manufacture require one or more
components that are available from only a single source. Some of these
components are allocated from time to time in response to supply shortages. In
some cases, supply shortages will substantially curtail production of all
assemblies using a particular component. In addition, at various times industry
wide shortages of electronic components have occurred, particularly of memory
and logic devices. Such circumstances have produced significant levels of
short-term interruption of our operations, and may have a material adverse
effect on our results of operations in the future.
OUR INTERNATIONAL OPERATIONS MAY BE SUBJECT TO CERTAIN RISKS
We derived 40% of our revenues from international operations in fiscal
year 1999. For the first six months of fiscal year 2000, we derived
approximately 43% of our revenues from international operations. We currently
operate outside the United States in Contagem, Brazil; Dan Shui, Panyu, and
Shenzhen, China; Bergamo, Italy; Penang, Malaysia; Guadalajara and Tijuana,
Mexico; and Livingston, Scotland. We have signed a lease for a facility in
Chihuahua, Mexico, and anticipate the building being available in July 2000. We
also anticipate completing construction of a facility in Tiszaujvaros, Hungary
late in 2000, and continuously consider additional opportunities to make
foreign acquisitions and construct new foreign facilities. Our international
operations may be subject to a number of risks, including:
- difficulties in staffing and managing foreign operations
- political and economic instability
- unexpected changes in regulatory requirements and laws
- longer customer payment cycles and difficulty collecting
accounts receivable export duties, import controls and trade
barriers (including quotas)
- governmental restrictions on the transfer of funds to us from
our operations outside the United States
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- burdens of complying with a wide variety of foreign laws and
labor practices
- fluctuations in currency exchange rates, which could affect
local payroll, utility and other expenses
- inability to utilize net-operating losses incurred by our
foreign operations to reduce our U.S. income taxes
In our experience, entry into new international markets requires
considerable management time as well as start-up expenses for market
development, hiring and establishing office facilities before any significant
revenues are generated. As a result, initial operations in a new market may
operate at low margins or may be unprofitable.
WE DEPEND ON KEY PERSONNEL
Our continued success depends largely on the efforts and skills of our
key managerial and technical employees. The loss of the services of certain of
these key employees or an inability to attract or retain qualified employees
could have a material adverse effect on us. We do not have employment
agreements or noncompetition agreements with our key employees.
WE MUST MAINTAIN OUR TECHNOLOGICAL AND MANUFACTURING PROCESS EXPERTISE
The market for our manufacturing services is characterized by rapidly
changing technology and continuing process development. We are continually
evaluating the advantages and feasibility of new manufacturing processes. We
believe that our future success will depend upon our ability to develop and
provide manufacturing services which meet our customers' changing needs,
maintain technological leadership, and successfully anticipate or respond to
technological changes in manufacturing processes on a cost-effective and timely
basis. We cannot assure you that our process development efforts will be
successful.
WE ARE SUBJECT TO A VARIETY OF ENVIRONMENTAL LAW COMPLIANCE RESPONSIBILITIES
We are subject to a variety of federal, state, local and foreign
environmental regulations relating to the use, storage, discharge and disposal
of hazardous chemicals used during our manufacturing process. If we fail to
comply with any present and future regulations, we could be subject to future
liabilities or the suspension of production. In addition, such regulations
could restrict our ability to expand our facilities or could require us to
acquire costly equipment, or to incur other significant expenses to comply with
environmental regulations.
CERTAIN EXISTING STOCKHOLDERS HAVE SIGNIFICANT CONTROL
Our executive officers, directors and their affiliates collectively
beneficially own approximately 29% of our outstanding common stock, of which
William D. Morean beneficially owns 22%. As a result, our executive officers,
directors, principal stockholders and their affiliates have significant
influence over (1) the election of our Board of Directors, (2) the approval or
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disapproval of any other matters requiring stockholder approval, and (3) the
affairs and policies of Jabil.
OUR STOCK PRICE MAY BE VOLATILE
Our common stock is traded on the New York Stock Exchange. The market
price of our common stock has fluctuated substantially in the past and could
fluctuate substantially in the future, based on a variety of factors, including
future announcements covering us or our key customers or competitors,
government regulations, litigation, changes in earnings estimates by analysts,
fluctuations in quarterly operating results, or general conditions in the
contract manufacturing, communications, computer peripherals, personal
computer, automotive or consumer products industries. Furthermore, stock prices
for many companies, and high technology companies in particular, fluctuate
widely for reasons that may be unrelated to their operating results. Those
fluctuations and general economic, political and market conditions, such as
recessions or international currency fluctuations and demand for our services,
may adversely affect the market price of our common stock.
OUR CERTIFICATE OF INCORPORATION, BYLAWS AND DELAWARE LAW MAY HAVE CERTAIN ANTI-
TAKEOVER EFFECTS
The Corporation Law of the State of Delaware and our certificate of
incorporation and bylaws each contain certain provisions which may, in effect,
discourage, delay or prevent a change of control of Jabil or unsolicited
acquisition proposals from taking place.
WE ARE SENSITIVE TO CHANGES IN INTEREST RATES
We pay interest on outstanding borrowings under our Credit Facility at
interest rates that fluctuate based upon changes in various base interest
rates. As of April 30, 2000, we had approximately $155 million of outstanding
borrowings under our Credit Facility. An adverse change in the base rates upon
which our interest rate is determined could have a material adverse effect on
our financial position, results of operations and cash flows.
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USE OF PROCEEDS
Unless otherwise indicated in the prospectus supplement, the net proceeds
from the sale of securities offered by this prospectus will be used for general
corporate purposes, including capital expenditures, the repayment or
refinancing of debt and to meet working capital needs. We expect from time to
time to evaluate the acquisition of businesses, products and technologies, for
which a portion of the net proceeds may be used. Pending such uses, we will
invest the net proceeds in interest-bearing securities.
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RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges and preferred stock dividends
for each of the periods indicated is as follows:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
FISCAL YEAR ENDED AUGUST 31, FEBRUARY 29,
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1995 1996 1997 1998 1999 2000
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<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges .......... 2.4 5.0 12.2 13.7 12.1 18.5
Ratio of earnings to combined fixed
charges and preferred stock dividends .... 2.4 5.0 12.2 13.7 12.1 18.5
</TABLE>
These computations include us and our consolidated subsidiaries. For these
ratios, "earnings" represents income before taxes plus fixed charges (excluding
capitalized interest) and amortization of previously capitalized interest.
Fixed charges consist of (1) interest on all indebtedness and amortization of
debt discount and expense, (2) capitalized interest and (3) an interest factor
attributable to rentals. Because Jabil paid no preferred stock dividends during
any of the periods presented, the ratio of earnings to combined fixed charges
and preferred stock dividends is identical to the ratio of earnings to fixed
charges for each of the periods presented.
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THE SECURITIES
Jabil may from time to time offer under this prospectus, separately or
together:
- senior or subordinated debt securities,
- shares of common stock,
- shares of preferred stock, which may be represented by
depositary shares as described below,
- warrants to purchase shares of common stock,
- warrants to purchase shares of preferred stock and
- warrants to purchase debt securities.
The aggregate initial offering price of the offered securities will
not exceed $750,000,000.
DESCRIPTION OF DEBT SECURITIES
The following description of debt securities sets forth the material
general terms and provisions of the series of debt securities to which any
prospectus supplement may relate. Other material specific terms of any
particular series of debt securities will be described in the applicable
prospectus supplement. To the extent that any particular terms of the debt
securities described in a prospectus supplement differ from any of the terms
described herein, then such terms described herein shall be deemed to have been
superseded by such prospectus supplement. The senior debt securities will be
senior secured or unsecured obligations of Jabil issued in one or more series
under an indenture (the "senior indenture") to be entered into between Jabil
and The Bank of New York, as trustee. The subordinated debt securities will be
subordinated unsecured obligations of Jabil issued in one or more series under
an indenture (the "subordinated indenture") to be entered into between Jabil
and The Bank of New York, as trustee. The forms of the indentures have been
filed with the SEC as exhibits to the registration statement. The terms of any
series of debt securities will be those set forth in the applicable indenture
and such debt securities and those made part of such indenture by the Trust
Indenture Act.
Because the summary of the material provisions of the indentures and
the debt securities set forth below and the summary of the material terms of a
particular series of debt securities set forth in the applicable prospectus
supplement are not complete, you should refer to the forms of the applicable
indenture and the debt securities for complete information regarding the terms
and provisions of that indenture (including defined terms) and the debt
securities. Wherever particular articles, sections or defined terms of an
indenture are referred to, those articles, sections or defined terms are
incorporated herein by reference, and the statement in connection with which
such reference is made is qualified in its entirety by such reference.
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GENERAL
The debt securities may be issued from time to time in one or more
series. (Section 3.1) The indentures do not limit the aggregate principal
amount of debt securities which Jabil may issue thereunder and provide that
Jabil may issue debt securities of any series thereunder up to an aggregate
principal amount which Jabil may authorize from time to time.
Unless otherwise provided in a prospectus supplement, the senior debt
securities will be unsecured obligations of Jabil and will rank equally with
all of its other unsecured and unsubordinated indebtedness. See "Security for
Senior Debt Securities" below. The subordinated debt securities of each series
will be unsecured obligations of Jabil, subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (which term includes senior
debt securities) of Jabil with respect to such series, as described below under
"Subordination of Subordinated Debt Securities" and in the applicable
prospectus supplement.
The prospectus supplement relating to the series of debt securities
offered thereby will describe the specific terms of the debt securities
offered, including (where applicable):
- the title or designation of such debt securities,
- any limit on the aggregate principal amount of such debt
securities,
- the price or prices (expressed as a percentage of the
principal amount thereof) at which such debt securities will
be issued,
- the date or dates on which the principal of and premium, if
any, on such debt securities will be payable, or the method
or methods, if any, by which such date or dates will be
determined,
- the rate or rates at which such debt securities will bear
interest, if any, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates,
if any, from which such interest will accrue, or the method
or methods, if any, by which such date or dates are to be
determined, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve
30-day months,
- the dates on which such interest, if any, will be payable and
the record dates, if any, therefor,
- the place or places where the principal of, premium, if any,
and interest, if any, or any Additional Amounts (as defined
below) on such debt securities will be payable and the place
or places where such debt securities may be surrendered for
registration of transfer and exchange, if in addition to or
other than The City of New York,
- if applicable, the date or dates on which, the period or
periods within which, the price or prices at which and the
other terms and conditions upon which debt
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securities may be redeemed at the option of Jabil or are
subject to repurchase at the option of the holders,
- the terms of any sinking fund or analogous provision,
- whether any such debt securities are to be issuable in
registered form as registered securities or bearer form as
bearer securities or both and, if in bearer form, the terms
and conditions relating thereto and any limitations on
issuance of such bearer securities (including in exchange for
registered securities of the same series),
- whether any such debt securities will be issued in temporary
or permanent global form and, if so, the identity of the
depositary for such global debt security,
- whether and under what circumstances Jabil will pay
Additional Amounts (as contemplated by the indentures) on
such debt securities to any holder who is a United States
Alien (i.e., as defined in the indentures, as such definition
may be modified, any person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the
members of which is, for United States Federal income tax
purposes, a foreign corporation, a non-resident alien
individual or a nonresident alien fiduciary of a foreign
estate or trust) in respect of any tax, assessment or other
governmental charge and, if so, whether Jabil will have the
option to redeem such debt securities rather than pay such
Additional Amounts,
- the person to whom any interest on any registered securities
of the series shall be payable, if other than the person in
whose name the registered security (or one or more
predecessor securities (i.e., every previous debt security
evidencing all or a portion of the same indebtedness as that
evidenced by such particular debt security)) is registered at
the close of business on the regular record date for such
interest, the manner in which, or the person to whom, any
interest on any bearer security of the series shall be
payable, if other than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest
payable on a temporary global debt security will be paid if
other than in the manner provided in the indenture,
- the portion of the principal amount of such debt securities
which shall be payable upon acceleration thereof if other
than the full principal amount thereof,
- if other than United States dollars, the currency of payment,
including composite currencies, of the principal of, any
premium or interest on or any Additional Amounts with respect
to any of such debt securities,
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- the authorized denominations in which such debt securities
will be issuable, if other than denominations of $1,000 and
any integral multiple thereof (in the case of registered
securities) or $5,000 (in the case of bearer securities),
- whether the amount of payments of principal of, and premium,
if any, and interest, if any, or any Additional Amounts, on,
such debt securities may be determined with reference to an
index, formula or other method or methods (any such debt
securities being hereinafter called "Indexed Securities") and
the manner in which such amounts will be determined,
- whether the debt securities will be convertible into shares
of common stock and/or exchangeable for other securities,
whether or not issued by Jabil, and, if so, the terms and
conditions upon which the debt securities will be so
convertible or exchangeable,
- whether such debt securities are senior debt securities or
subordinated debt securities and, if subordinated debt
securities, the specific subordination provisions applicable
thereto,
- in the case of senior debt securities, whether the senior
debt securities of the series will be secured by a pledge of,
or security interest in, any assets or property of Jabil and,
if so, the specific security provisions applicable thereto,
- in the case of subordinated debt securities, the relative
degree, if any, to which such subordinated debt securities of
the series will be senior to or be subordinated to other
series of subordinated debt securities or other indebtedness
of Jabil in right of payment, whether such other series of
subordinated debt securities or other indebtedness is
outstanding or not,
- whether any of such debt securities are to be issued upon the
exercise of warrants, and the time, manner and place for such
debt securities to be authenticated and delivered,
- any deletions from, modifications of or additions to the
Events of Default or covenants with respect to the debt
securities,
- whether the provisions described below under "Discharge,
Defeasance and Covenant Defeasance" will be applicable to
such debt securities and
- any other terms of such debt securities. (Section 3.1)
As used in this prospectus and any prospectus supplement relating to
the offering of any debt securities, references to the principal of and
premium, if any, and interest, if any, on such debt securities will be deemed
to include mention of the payment of Additional Amounts, if any, required by
the terms of such debt securities in such context. "Additional Amounts" means
any additional amounts which are required by the applicable indenture or by the
terms of any debt security, under circumstances specified therein, to be paid
by Jabil in respect of certain taxes,
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assessments or other governmental charges imposed on the holders of such debt
security and which are owing to such holders.
Debt securities may be issued as original issue discount securities
(i.e., debt securities which provide for declarations of amounts less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to the indenture) to be sold at a substantial discount below their principal
amount. In the event of an acceleration of the maturity of any original issue
discount security, the amount payable to the holder thereof upon such
acceleration will be determined in the manner described in the applicable
prospectus supplement. Material federal income tax and other considerations
applicable to original issue discount securities will be described in the
applicable prospectus supplement.
Under the indentures, the terms of the debt securities of any series
may differ and Jabil, without the consent of the holders of the debt securities
of any series, may reopen a previous series of debt securities and issue
additional debt securities of such series or establish additional terms of such
series. (Section 3.1)
Unless otherwise described in a prospectus supplement relating to any
debt securities, other than as described below under "Covenants Applicable to
Senior Debt Securities" neither indenture contains any provisions that would
limit Jabil's ability to incur indebtedness or that would afford holders of
debt securities protection in the event of a sudden and significant decline in
the credit quality of Jabil or a takeover, recapitalization or highly leveraged
or similar transaction involving Jabil. Accordingly, Jabil could in the future
enter into transactions that could increase the amount of indebtedness
outstanding at that time or otherwise affect Jabil's capital structure or
credit rating. You should refer to the prospectus supplement relating to a
particular series of debt securities for information regarding any deletions
from, modifications of or additions to the Events of Default described below or
covenants contained in the applicable indenture, including any addition of a
covenant or other provisions providing event risk or similar protection.
CONVERSION AND EXCHANGE
The terms, if any, on which debt securities of any series are
convertible into or exchangeable for shares of common stock, shares of
preferred stock or other securities, whether or not issued by Jabil, property
or cash, or a combination of any of the foregoing, will be set forth in the
related prospectus supplement. Such terms may include provisions for conversion
or exchange, either mandatory, at the option of the holder, or at the option of
Jabil, in which the securities, property or cash to be received by the holders
of the debt securities would be calculated according to the factors and at such
time as described in the related prospectus supplement.
SECURITY FOR SENIOR DEBT SECURITIES
The senior indenture provides that the payment of all amounts owing by
Jabil under the senior debt securities of each series, if specified in the
applicable prospectus supplement, will be secured equally and ratably with the
obligations of Jabil and other borrowers owing under the Credit Facility and
with the obligations of Jabil under its 6.89% senior notes due May 30, 2004.
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For purposes of this discussion, references to the Credit Facility and any
obligations owing under the Credit Facility include any amendment, extension,
renewal, substitution or replacement, or successive amendment, extension,
renewal, substitution or replacement (within 180 days of the termination of any
predecessor Credit Facility), of the Credit Facility or such obligations.
Pursuant to the terms of the Credit Facility, Jabil is obligated to
pledge as collateral to secure its obligations thereunder (i) 65% of the stock
of each of Jabil's direct foreign subsidiaries, and (ii) 100% of the stock of
each of Jabil's domestic subsidiaries that in the future constitute 3% of more
of Jabil's total consolidated assets or which constitute 3% or more of Jabil's
total consolidated revenues for the most recently completed fiscal year. Jabil
will enter into security documents, or amend its existing security documents,
to provide that the holders of senior debt securities of each applicable series
will have an equal and ratable interest in the collateral from time to time
pledged to the bank lenders and the holders of the outstanding senior notes. As
of April 30, 2000, Jabil had approximately $196.7 million of indebtedness
outstanding secured by the pledge of stock, consisting of $155 million of
indebtedness under the Credit Facility and $41.7 of indebtedness under the
senior notes. As of April 30, 2000, Jabil had $345 million of borrowing
availability under the Credit Facility.
The security interest granted to the senior debt securities of the
applicable series will continue only for so long as the security interest
granted in connection with the Credit Facility is not terminated or otherwise
released by the lenders that are parties to the Credit Facility. The security
interest terminates in any event when the Credit Facility expires (subject to
amendment, extension, renewal, substitution or replacement as indicated above).
The senior debt securities are not otherwise independently entitled to
security, and the collateral, which in part secures the senior debt securities
of the applicable series, can be disposed of and released by the lenders under
the Credit Facility without the consent of the holders of the senior debt
securities. Security for the senior debt securities may also be required as a
result of the operation of the "limitation on liens" covenant described below.
The obligations of Jabil and each other borrower under the Credit
Facility, as well as the obligations of Jabil owing to the holders of
outstanding senior notes, are guaranteed on a joint and several basis by each
other borrower, as applicable, and each direct and indirect domestic subsidiary
of Jabil. The senior debt securities of the applicable series will be secured
by the pledge of collateral to the extent described above, but will not have
the benefit of such guarantees.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The subordinated debt securities of each series will, to the extent
set forth in the subordinated indenture, be subordinate in right of payment to
the prior payment in full of all Senior Indebtedness with respect to such
series. (Section 16.1 of the subordinated indenture). Upon any payment or
distribution of assets of Jabil of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution, winding-up,
liquidation or reorganization of Jabil, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due upon
all Senior Indebtedness with respect to the subordinated debt securities of any
series will first be paid in full, or payment thereof provided for in money in
accordance with its terms, before the holders of subordinated debt
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securities of such series are entitled to receive or retain any payment on
account of principal of, or any premium or interest on, or any additional
amounts with respect to, the subordinated debt securities of such series, and
to that end the holders of such Senior Indebtedness will be entitled to
receive, for application to the payment thereof, any payment or distribution of
any kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by reason of
the payment of any other Indebtedness of Jabil being subordinated to the
payment of subordinated debt securities of such series, which may be payable or
deliverable in respect of the subordinated debt securities of such series upon
any such dissolution, winding-up, liquidation or reorganization or in any such
bankruptcy, insolvency, receivership or other proceeding. (Section 16.3 of the
subordinated indenture)
By reason of such subordination, in the event of liquidation or
insolvency of Jabil, holders of Senior Indebtedness with respect to the
subordinated debt securities of any series and holders of other obligations of
Jabil that are not subordinated to such Senior Indebtedness may recover more,
ratably, than the holders of the subordinated debt securities of such series.
Subject to the payment in full of all Senior Indebtedness with respect
to the subordinated debt securities of any series, the rights of the holders of
the subordinated debt securities of such series will be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of Jabil applicable to such
Senior Indebtedness until the principal of, any premium and interest on, and
any additional amounts with respect to, the subordinated debt securities of
such series have been paid in full. (Section 16.4 of the subordinated
indenture)
No payment of principal (including redemption and sinking fund
payments) of or any premium or interest on or any additional amounts with
respect to the subordinated debt securities of any series may be made (1) if
any Senior Indebtedness with respect to such series is not paid when due and
any applicable grace period with respect to such default has ended and such
default has not been cured or waived or ceased to exist, or (2) if the maturity
of any Senior Indebtedness with respect to such series has been accelerated
because of a default. (Section 16.2 of the subordinated indenture)
The subordinated indenture does not limit or prohibit Jabil from
incurring additional Senior Indebtedness, which may include Indebtedness that
is senior to the subordinated debt securities of any series, but subordinate to
other obligations of Jabil. The senior debt securities will constitute Senior
Indebtedness with respect to the subordinated debt securities of each series
under the subordinated indenture.
The term "Senior Indebtedness" means, with respect to the subordinated
debt securities of any particular series, all Indebtedness of Jabil outstanding
at any time, except (1) the subordinated debt securities of such series, (2)
Indebtedness as to which, by the terms of the instrument creating or evidencing
the same, it is provided that such Indebtedness is subordinated to or ranks
equally with the subordinated debt securities of such series, (3) Indebtedness
of Jabil to an Affiliate of Jabil and (4) interest accruing after the filing of
a petition initiating any bankruptcy, insolvency or other similar proceeding
unless such interest is an allowed claim enforceable against Jabil in a
proceeding under federal or state bankruptcy laws. Senior Indebtedness with
respect to the subordinated debt securities of any particular series will
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continue to be Senior Indebtedness with respect to the subordinated debt
securities of such series and be entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness. (Sections 1.1 and 16.8 of the subordinated indenture)
The subordinated indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular series of subordinated
debt securities, may be changed prior to such issuance. Any such change would
be described in the related prospectus supplement.
REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable prospectus supplement,
each series of debt securities will be issued in registered form only, without
coupons. The indentures, however, provide that Jabil may also issue debt
securities in bearer form only, or in both registered and bearer form. Bearer
securities shall not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to any United States person (as
defined below) other than in offices located outside the United States of
certain United States financial institutions. As used herein, "United States
person" means any citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under the laws of the
United States, any estate the income of which is subject to United States
federal income taxation regardless of its source, or any trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States fiduciaries who have the authority to
control all substantial decisions of the trust, and "United States" means,
except as may be set forth in the prospectus supplement, the United States of
America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
Purchasers of bearer securities will be subject to certification procedures and
may be affected by certain limitations under United States tax laws. Such
procedures and limitations will be described in the prospectus supplement
relating to the offering of the bearer securities. (Section 3.5)
Unless otherwise indicated in the applicable prospectus supplement,
registered securities will be issued in denominations of $1,000 or any integral
multiple thereof, and bearer securities will be issued in denominations of
$5,000.
Unless otherwise indicated in the applicable prospectus supplement,
the principal, premium, if any, and interest, if any, of or on the debt
securities will be payable, and debt securities may be surrendered for
registration of transfer or exchange, at an office or agency to be maintained
by Jabil in the Borough of Manhattan, The City of New York, provided that
payments of interest with respect to any registered security may be made at the
option of Jabil by check mailed to the address of the person entitled thereto
or by transfer to an account maintained by the payee with a bank located in the
United States. No service charge shall be made for any registration of transfer
or exchange of debt securities, but Jabil may require payment of a sum
sufficient to cover any tax or other governmental charge and any other expenses
that may be imposed in connection therewith. (Section 3.7)
Unless otherwise indicated in the applicable prospectus supplement,
payment of principal of, premium, if any, and interest, if any, on bearer
securities will be made, subject to any
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applicable laws and regulations, at such office or agency outside the United
States as specified in the prospectus supplement and as Jabil may designate
from time to time. Unless otherwise indicated in the applicable prospectus
supplement, payment of interest due on bearer securities on any interest
payment date will be made only against surrender of the coupon relating to such
interest payment date. (Section 3.5)
Unless otherwise indicated in the applicable prospectus supplement, no
payment of principal, premium or interest with respect to any bearer security
will be made at any office or agency in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that if amounts owing
with respect to any bearer securities shall be payable in U.S. dollars, payment
with respect to any such bearer securities may be made at the corporate trust
office of the trustee or at any office or agency designated by Jabil in the
Borough of Manhattan, The City of New York, if (but only if) payment of the
full amount of such principal, premium or interest at all offices outside of
the United States maintained for such purpose by Jabil is illegal or
effectively precluded by exchange controls or similar restrictions. (Section
10.2)
Unless otherwise indicated in the applicable prospectus supplement,
Jabil will not be required to do the following:
- issue, register the transfer of or exchange debt securities
of any series during a period beginning at the opening of
business 15 days before any selection of debt securities of
that series of like tenor to be redeemed and ending at the
close of business on the day of that selection;
- register the transfer of or exchange any registered security,
or portion thereof, called for redemption, except the
unredeemed portion of any registered security being redeemed
in part;
- exchange any bearer security called for redemption, except to
exchange such bearer security for a registered security of
that series and like tenor that is simultaneously surrendered
for redemption; or
- issue, register the transfer of or exchange any debt security
that has been surrendered for repayment at the option of the
holder, except the portion, if any, of such debt security not
to be so repaid. (Section 3.5)
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GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in
the form of one or more global debt securities that will be deposited with, or
on behalf of, a depositary identified in the prospectus supplement relating to
such series. The specific terms of the depositary arrangement with respect to a
series of global debt securities and certain limitations and restrictions
relating to a series of global bearer securities will be described in the
prospectus supplement relating to such series. Jabil anticipates that the
following provisions will apply to all depositary arrangements.
Global debt securities may be issued in either registered or bearer
form and in either temporary or permanent form. Unless and until it is
exchanged in whole or in part for individual certificates evidencing debt
securities in definitive form represented thereby, a global debt security may
not be transferred except as a whole by the depositary for such global debt
security to a nominee of such depositary or by a nominee of such depositary to
such depositary or another nominee of such depositary or by such depositary or
any such nominee to a successor of such depositary or a nominee of such
successor.
Upon the issuance of a global security, the depositary for such global
security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the debt securities
represented by such global security. Such accounts will be designated by the
underwriters or agents with respect to such debt securities or by Jabil if such
debt securities are offered and sold directly by Jabil. Ownership of beneficial
interests in a global security will be limited to persons that may hold
interests through participants. Ownership of beneficial interests in such
global security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the depositary or its nominee
(with respect to interests of participants) and on the records of participants
(with respect to interests of persons other than participants). The laws of
some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a global security.
So long as the depositary or its nominee is the registered owner of a
global debt security, that entity will be the sole holder or owner of the debt
securities represented by the global debt security for all purposes under the
indenture. The trustee and Jabil are only required to treat the depositary or
its nominee as the legal owner of those debt securities for all purposes under
the indenture. Each beneficial owner of debt securities represented by a global
debt security will not be entitled to receive physical delivery of certificated
securities, will not be considered the holder of those securities for any
purpose under the indenture, and will not be able to transfer or exchange the
global debt securities, except in the limited circumstances as may be described
in this prospectus or the supplement. As a result, each beneficial owner may
have to rely on the procedures of the depositary to exercise any rights of a
holder under the indenture, including rights upon an Event of Default. In
addition, if the beneficial owner is not a direct or indirect participant in
the depositary (a "participant") the beneficial owner must rely on the
procedures of the participant through which it owns its beneficial interest in
the global debt security.
Principal of, any premium and interest on, and any Additional Amounts
with respect to, the debt securities registered in the name of a depositary or
its nominee will be made to the
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depositary or its nominee, as the case may be, as the registered owner of the
global security representing such debt securities. None of Jabil, the trustee,
any paying agent or the security registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of the global security for such debt
securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Jabil expects that the depositary for a series of the debt securities
or its nominee, upon receipt of any payment with respect to such debt
securities, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interest in the principal
amount of the global security for such debt securities as shown on the records
of such depositary or its nominee. Jabil also expects that payments by
participants to owners of beneficial interests in such global security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in "street name," and will be the responsibility of
such participants.
Each indenture provides that if (i) the depositary for a series of the
debt securities notifies Jabil that it is unwilling or unable to continue as
depositary or if such depositary ceases to be eligible under the indenture and
a successor depositary is not appointed by Jabil within 90 days of written
notice, (ii) determines that the debt securities of a particular series will no
longer be represented by global securities and executes and delivers to the
trustee a company order to such effect or (iii) an Event of Default with
respect to a series of the debt securities has occurred and is continuing, the
global securities will be exchanged for debt securities of such series in
definitive form of like tenor and of an equal aggregate principal amount, in
authorized denominations. Such definitive debt securities will be registered in
such name or names, as the depositary shall instruct the trustee. (Section 3.5)
With respect to ownership of beneficial interests in global securities, we
expect that such instructions may be based upon directions received by the
depositary from participants.
REDEMPTION AND REPURCHASE
The debt securities of any series may be redeemable at the option of
Jabil, may be subject to mandatory redemption pursuant to a sinking fund or
otherwise, or may be subject to repurchase by Jabil at the option of the
holders, in each case upon the terms, at the times and at the prices set forth
in the applicable prospectus supplement.
COVENANTS APPLICABLE TO SENIOR DEBT SECURITIES
The senior indenture contains certain covenants for the benefit of
holders of senior debt securities of each series, unless otherwise specified in
the applicable prospectus supplement. These covenants include, among others,
the following:
Limitations upon Liens. Jabil will not, and will not permit any
Restricted Subsidiary (as defined below) to, create, incur, issue, assume or
guarantee any Indebtedness (as defined below) secured by any Lien (as defined
below) on any property (including shares of Capital Stock or Indebtedness) or
assets of Jabil or any Restricted Subsidiary, whether now owned or hereafter
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acquired, without in any such case effectively providing concurrently with the
creation, incurrence, issuance, assumption or guarantee of such Indebtedness or
the grant of any Lien with respect to such Indebtedness that the debt
securities of the applicable series (together with, if Jabil so determines, any
other Indebtedness of Jabil or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the debt securities of such
series) will be secured by any such Lien equally and ratably with (or prior to)
such secured Indebtedness, so long as such secured Indebtedness is so secured.
However, Jabil's Credit Facility, as in effect on the date of this prospectus,
prohibits Jabil or any of its subsidiaries from incurring Liens in favor of
holders of senior debt securities pursuant to this "limitation on liens"
covenant. This means that at any time that such prohibition is in effect,
whether under the current Credit Facility or otherwise, Jabil will not be able
to equally and ratably secure any series of debt securities pursuant to this
covenant. (This prohibition does not limit the right of holders of debt
securities secured as described under "Security for Senior Debt Securities" to
be secured equally and ratably with the bank lenders under the Credit
Facility). While any such prohibition is in effect, therefore, subject to the
exceptions described below, Jabil will not, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume or guarantee any Indebtedness
secured by any Lien on any property (including shares of Capital Stock or
Indebtedness) or assets of Jabil or any Restricted Subsidiary, whether now
owned or hereafter acquired, to the extent prohibited by the Credit Facility or
otherwise.
The foregoing restrictions will not, however, apply to Indebtedness
secured by:
(i) Liens on property or assets of Jabil or any Restricted
Subsidiary existing on the date of the original issuance of
the applicable series of senior debt securities or such other
date as may be specified for an applicable series of senior
debt securities,
(ii) Liens on shares of Capital Stock of any Subsidiary of Jabil
securing Indebtedness of Jabil under the Credit Facility,
whether now existing or hereafter arising,
(iii) Liens on property or assets of any Person existing at the
time such Person becomes a Restricted Subsidiary or is merged
with or into or consolidated with Jabil or a Restricted
Subsidiary, or at the time of a sale, lease or other
disposition of the properties of a Person as an entirety or
substantially as an entirety to Jabil or a Restricted
Subsidiary, or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of
such Person becoming a Restricted Subsidiary and not in
contemplation of any such merger or consolidation or any such
sale, lease or other disposition; provided that such Liens
shall not extend to any other property or assets of Jabil or
any Restricted Subsidiary,
(iv) Liens on property or assets of Jabil or any Restricted
Subsidiary existing at the time of acquisition thereof
(including acquisition through merger or consolidation);
provided that such Liens were in existence prior to and were
not created in contemplation of such acquisition and shall
not extend to any other property or assets of Jabil or any
Restricted Subsidiary,
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(v) Liens on property (including in the case of a plant or
facility, the land on which it is erected and fixtures
comprising a part thereof) or assets of Jabil or any
Restricted Subsidiary securing the payment of all or any part
of the purchase price or construction cost thereof or
securing any Indebtedness created, incurred, assumed or
guaranteed prior to, at the time of or within 180 days after,
the acquisition of such property or assets or the completion
of any such construction, whichever is later, for the purpose
of financing all or any part of the purchase price or
construction cost thereof (provided, in the case of Liens
securing the payment of all or any part of the purchase price
of any property or assets of Jabil or any Restricted
Subsidiary, as the case may be, or securing any Indebtedness
created, incurred, assumed or guaranteed for the purposes of
financing all or any part of such purchase price, such Liens
are limited to the property or assets then being acquired and
fixed improvements thereon and the Capital Stock of any
person formed to acquire such property or assets, and,
provided further, that in the case of Liens securing the
payment of all or any part of the construction cost of any
property of Jabil or any Restricted Subsidiary, as the case
may be, or securing any Indebtedness created, incurred,
assumed or guaranteed for the purpose of financing all or any
part of such construction cost, such Liens are limited to the
assets or property then being constructed and the land on
which such property is erected and fixtures comprising a part
thereof),
(vi) Liens on property or assets to secure all or any part of the
cost of development, operation, construction, alteration,
repair or improvement of all or any part of such property or
assets, or to secure Indebtedness incurred prior to, at the
time of or within 180 days after, the completion of such
development, operation, construction, alteration, repair or
improvement, whichever is later, for the purpose of financing
all or any part of such cost (provided such Liens do not
extend to or cover any property or assets of Jabil or any
Restricted Subsidiary other than the property or assets then
being developed, constructed, altered, repaired or improved
and the land on which such property is erected and fixtures
comprising a part thereof),
(vii) Liens which secure Indebtedness owing by a Restricted
Subsidiary to Jabil or to a Restricted Subsidiary,
(viii) Liens on the property of Jabil or a Restricted Subsidiary in
favor of the United States of America or any State thereof,
or any department, agency, instrumentality or political
subdivision of the United States of America or any State
thereof, or in favor of any other country, or any department,
agency, or instrumentality or political subdivision thereof,
in each case (a) securing partial, progress, advance or other
payments pursuant to any contract or statute, (b) securing
indebtedness incurred to finance all or any part of the
purchase price or cost of constructing, installing or
improving the property subject to such mortgages including
mortgages to secure Indebtedness of the pollution control or
industrial revenue bond type, or (c) securing indebtedness
issued or guaranteed by the United States of America, any
State, any foreign country or any department, agency,
instrumentality or political subdivision of any such
jurisdiction,
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(ix) statutory or common law landlords', carriers',
warehouseman's, mechanics', suppliers', materialmen's,
repairmen's, or other like Liens arising in the ordinary
course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate
legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with
GAAP shall have been made,
(x) Liens for taxes, assessments or governmental charges that are
being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and
for which adequate reserves or other appropriate provisions
are being maintained, to the extent required by GAAP,
(xi) zoning restrictions, easements or minor defects or
irregularities in title and other similar charges or
encumbrances on property not interfering in any material
respect with the use of such property by Jabil or any
Restricted Subsidiary,
(xii) customary deposit arrangements entered into in connection
with acquisitions,
(xiii) Liens in favor of the trustee under any indenture for debt
securities of Jabil, as provided for in the applicable
indenture on money or property held or collected by the
trustee in its capacity as trustee,
(xiv) Liens that are within the general parameters customary in the
industry and incurred in the ordinary course of business
securing Indebtedness under any Interest Rate Agreement or
Currency Agreement designed solely to protect Jabil or any of
its Restricted Subsidiaries from fluctuations in interest
rates, currencies or the price of commodities,
(xv) Liens incurred (a) in connection with workers' compensation,
unemployment insurance and other types of statutory
obligations or the requirements of any official body, or (b)
to secure the performance of Surety Obligations incurred in
the ordinary course of business consistent with industry
practice, or (c) to obtain or secure obligations with respect
to letters of credit, guarantees, bonds or other sureties or
assurances given in connection with the activities described
in clauses (a) and (b) above, in each case not incurred or
made in connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred purchase
price of property or services, or (d) Liens securing
performance of leases, construction, sales or servicing
contracts and similar obligations incurred in the ordinary
course of business, in each case not incurred or made in
connection with the borrowing of money,
(xvi) judgment Liens against Jabil or any Restricted Subsidiary not
giving rise to an Event of Default and
(xvii) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or
replacements), in whole or in part, of any of the Liens
referred to in paragraphs (i) through (xvi) above or the
Indebtedness secured thereby.
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Notwithstanding the foregoing, the senior indenture provides that
Jabil and any Restricted Subsidiary may create, incur, issue or assume
Indebtedness secured by a Lien which would otherwise be subject to the
foregoing restrictions if the aggregate principal amount of all Indebtedness
secured by Liens on property or assets of Jabil and of any Restricted
Subsidiary then outstanding (not including any such Indebtedness secured by
Liens permitted to be incurred pursuant to paragraphs (i) through (xvii) above)
plus Attributable Debt (as defined below) of Jabil and its Restricted
Subsidiaries in respect of sale and leaseback transactions (as defined in
"Limitations upon Sales and Leasebacks" below) that would otherwise be subject
to the restrictions described below under "Limitations upon Sales and
Leasebacks" does not at the time such Indebtedness is incurred exceed an amount
equal to 10% of Consolidated Net Tangible Assets (as defined below). Under the
senior indenture, the foregoing exception does not apply to limit the right of
holders of senior debt securities secured as described above under "Security
for Senior Debt Securities" to be secured equally and ratably with the bank
lenders under Jabil's Credit Facility with regard to any collateral from time
to time pledged pursuant to the Credit Facility. Holders of any senior debt
securities not so secured will be secured equally and ratably by any Lien only
to the extent that it is not otherwise permitted under paragraphs (i) through
(xvii) above or to the extent the 10% limitation referred to above is exceeded
(to the extent any such Lien may be created because the prohibition, under the
Credit Facility or otherwise, is no longer in effect).
For the purposes of the "Limitations upon Liens" covenant described
above, the giving of a guarantee which is secured by a Lien and the creation of
a Lien to secure Indebtedness which existed prior to the creation of such Lien,
will be deemed to involve the creation of Indebtedness in an amount equal to
the principal amount guaranteed or secured by such Lien; but the amount of
Indebtedness secured by Liens will be computed without cumulating the
underlying indebtedness with any guarantee thereof or Lien securing the same.
Limitations upon Sales and Leasebacks. Jabil will not, and will not
permit any Restricted Subsidiary to, enter into any arrangement after the date
of the original issuance of the applicable series of debt securities or such
other date as may be specified for an applicable series of debt securities with
any bank, insurance company or other lender or investor (other than Jabil or
another Restricted Subsidiary) providing for the leasing by Jabil or any such
Restricted Subsidiary of any property or assets for a period of more than three
years, which was or is owned or leased by Jabil or a Restricted Subsidiary and
which has been or is to be sold or transferred by Jabil or such Restricted
Subsidiary to such lender or investor or to any Person to whom funds have been
or are to be advanced by such lender or investor on the security of such
property or assets (herein referred to as a "sale and leaseback transaction")
unless either:
(i) Jabil and its Restricted Subsidiaries would be entitled,
pursuant to the provisions described in the "Limitations upon
Liens" covenant described above, to incur Indebtedness
secured by a Lien on such property or assets in a principal
amount equal to or exceeding the Attributable Debt in respect
of such sale and leaseback transaction without equally and
ratably securing the applicable series of senior debt
securities; or
(ii) Jabil, within 180 days after the sale or transfer, applies or
causes a Restricted Subsidiary to apply an amount equal to
the greater of the net proceeds of such sale
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or transfer or the fair value of such property at the time of
entering into such sale and leaseback transaction (as
determined by any two of the following: the President, any
Vice President, the Treasurer and the Controller of Jabil) to
the retirement of debt securities or other Funded Debt (as
defined below) of Jabil (other than Funded Debt subordinated
to the debt securities) or Funded Debt of a Restricted
Subsidiary; provided that the amount to be so applied shall
be reduced by (a) the principal amount of debt securities
delivered within 180 days after such sale or transfer to the
trustee for retirement and cancellation, and (b) the
principal amount of any such Funded Debt of Jabil or a
Restricted Subsidiary, other than debt securities,
voluntarily retired by Jabil or a Restricted Subsidiary
within 180 days after such sale or transfer to the trustee
for retirement and cancellation, excluding in the case of
both (a) and (b), retirement pursuant to any mandatory
sinking fund payment or any mandatory prepayment provision or
by payment at maturity.
Restrictions on Funded Debt of Restricted Subsidiaries. Jabil will not
permit any Restricted Subsidiary to create, incur, issue, assume or guarantee
any Funded Debt. This restriction will not apply if:
(i) Jabil or such Restricted Subsidiary could create Indebtedness
secured by Liens in accordance with one or more of clauses
(i) through (xvii) of the "Limitations upon Liens" covenant
described above (whether or not such Indebtedness is in fact
secured by Liens) or enter into a sale and leaseback
transaction in accordance with the "Limitations upon Sales
and Leasebacks" covenant described above in an amount equal
to such Funded Debt, without equally and ratably securing the
senior debt securities,
(ii) such Funded Debt existed on the date of the original issuance
of the applicable series of senior debt securities or such
other date as may be specified for an applicable series of
senior debt securities,
(iii) such Funded Debt is owed to Jabil or any Restricted
Subsidiary,
(iv) such Funded Debt existed at the time the Person that issued
such Funded Debt became a Restricted Subsidiary, or was
merged with or into or consolidated with such Restricted
Subsidiary, or at the time of a sale, lease or other
disposition or the properties of such Person as an entirety
to such Restricted Subsidiary, or arising thereafter
(a) otherwise than in connection with the borrowing of
money arranged thereafter and
(b) pursuant to contractual commitments entered into
prior to and not in contemplation of such Person
becoming a Restricted Subsidiary and not in
contemplation of any such merger or consolidation or
any such sale, lease or other disposition,
(v) such Funded Debt is guaranteed by Jabil,
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(vi) such Funded Debt is guaranteed by a governmental agency,
(vii) such Funded Debt is issued, assumed or guaranteed in
connection with, or with a view to, compliance by such
Restricted Subsidiary with the requirements of any program
adopted by any federal, state or local governmental authority
and applicable to such Restricted Subsidiary and providing
financial or tax benefits to such Restricted Subsidiary which
are not available directly to Jabil,
(viii) such Funded Debt is issued, assumed or guaranteed to pay all
or any part of the purchase price or the construction cost of
property or equipment acquired or constructed by a Restricted
Subsidiary, provided such Funded Debt is incurred within 180
days after acquisition, completion of construction or
commencement of full operation of such property, whichever is
later, and, provided further, that the principal amount of
such Funded Debt does not exceed 100% of the fair market
value of the property or equipment acquired or constructed,
(ix) such Funded Debt is nonrecourse or
(x) such Funded Debt is incurred for the purpose of extending,
renewing, substituting, replacing or refunding Funded Debt
permitted by the foregoing.
Notwithstanding the foregoing, any Restricted Subsidiary may create,
incur, issue, assume or guarantee Funded Debt which would otherwise be subject
to the foregoing restrictions in an aggregate principal amount which, together
with the aggregate outstanding principal amount of all other Funded Debt of
Jabil's Restricted Subsidiaries which would otherwise be subject to the
foregoing restrictions (not including Funded Debt permitted to be incurred
pursuant to clauses (i) through (x) above), does not at the time such Funded
Debt is incurred exceed an amount equal to 10% of Consolidated Net Tangible
Assets.
For the purposes of determining compliance with this covenant, in the
event that an item of Funded Debt meets the criteria of more than one of the
types of Funded Debt described above, Jabil, in its sole discretion, will
classify, and may reclassify, such Funded Debt and only be required to include
the amount and type of such Funded Debt in one of the above clauses or the
immediately preceding paragraph, and an item of Funded Debt may be divided and
classified and reclassified into more than one of the types of Funded Debt
described above.
CONSOLIDATION, AMALGAMATION, MERGER AND SALE OF ASSETS
Each indenture provides that Jabil may not (i) consolidate or
amalgamate with or merge into any Person or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
Person, or (ii) permit any Person to consolidate or amalgamate with or merge
into Jabil, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to Jabil, unless (a) in the case of
(i) above, such Person is a Corporation organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia
and will expressly assume, by supplemental indenture satisfactory in form to
the trustee, the due and punctual payment of the principal of, any premium and
interest on and any additional amounts with respect to all of the debt
securities issued thereunder, and the performance of Jabil's obligations under
the indenture, including, if any
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senior debt securities are then secured pursuant to Article 16 of the senior
indenture, any collateral documents relating thereto, and the debt securities
issued thereunder, and provides for conversion or exchange rights in accordance
with the provisions of the debt securities of any series that are convertible
or exchangeable into ordinary shares or other securities; (b) immediately after
giving effect to such transaction and treating any indebtedness which becomes
an obligation of Jabil or a Subsidiary as a result of such transaction as
having been incurred by Jabil or such Subsidiary 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, will have happened and be
continuing; and (c) certain other conditions are met. (Section 8.1)
EVENTS OF DEFAULT
Unless otherwise specified in the applicable prospectus supplement, an
Event of Default with respect to the debt securities of any series is defined
in the applicable indenture as being:
(i) default in the payment of any interest on any debt security
of such series, or any Additional Amounts payable with
respect thereto, when such interest becomes or such
Additional Amounts become due and payable, and continuance of
such default for a period of 30 days,
(ii) default in payment of principal or any premium with respect
to any debt security of such series, or any Additional
Amounts payable with respect thereto, when due upon maturity,
redemption or otherwise,
(iii) default in making any sinking fund payment or payment under
any analogous provision when due with respect to any debt
security of such series,
(iv) default by Jabil in the performance, or breach, of any other
covenant or warranty in the indenture (other than a covenant
or warranty included therein solely for the benefit of one or
more series of debt securities other than that series) or any
debt security of such series which shall not have been
remedied for a period of 60 days after delivery of written
notice to Jabil by the trustee or the holders of not less
than 25% in aggregate principal amount of the debt securities
of such series then outstanding,
(v) there occurs with respect to any issue or issues of
Indebtedness of Jabil (including an Event of Default under
any other series of debt securities) or any Restricted
Subsidiary having an outstanding principal amount of
$50,000,000 or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness exists on the
date hereof or shall hereafter be created, (a) an event of
default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its stated
maturity and such Indebtedness shall not have been discharged
in full or such acceleration shall not have been rescinded or
annulled within 30 days of such acceleration and/or (b) the
failure to make a principal payment at the final (but not any
interim) fixed maturity and such defaulted payment shall not
have been made, waived or extended within 30 days of such
payment default,
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(vi) Jabil or any of its Restricted Subsidiaries shall fail within
30 days to pay, bond or otherwise discharge uninsured
judgements or court orders for the payment of money in excess
of $50,000,000 in the aggregate, which are not stayed on
appeal or are not otherwise being appropriately contested in
good faith,
(vii) certain events of bankruptcy, insolvency, reorganization,
winding up or liquidation of Jabil or any of its Restricted
Subsidiaries or
(viii) any other Event of Default established in or pursuant to the
applicable indenture for the debt securities of such series.
(Section 5.1)
No Event of Default with respect to any particular series of debt securities
necessarily constitutes an Event of Default with respect to any other series of
debt securities. Each indenture provides that the trustee thereunder may
withhold notice to the holders of the debt securities of any series of the
occurrence of a default with respect to the debt securities of such series
(except a default in payment of principal, premium, if any, interest, if any,
or sinking fund payments, if any) if the trustee considers it in the interest
of the holders to do so.
Each indenture provides that if an Event of Default with respect to
any series of debt securities of the type described in clause (vii) with
respect to Jabil shall have occurred and be continuing, then the principal of,
accrued and unpaid interest on and any Additional Amounts payable in respect of
the debt securities of such series will become immediately due and payable.
Each indenture provides that if any other Event of Default with respect to any
series of debt securities issued thereunder shall have occurred and be
continuing, either the trustee or the holders of at least 25% in principal
amount of the debt securities of such series then outstanding may declare the
principal amount (or if any debt securities of such series are original issue
discount securities, such lesser amount as may be specified in the terms
thereof) of all the debt securities of such series to be due and payable
immediately, but upon certain conditions such declaration and its consequences
may be rescinded and annulled by the holders of a majority in principal amount
of the debt securities of such series then outstanding. (Section 5.2)
Subject to the provisions of the Trust Indenture Act requiring the
trustee, during an Event of Default under the applicable indenture, to act with
the requisite standard of care, the trustee is under no obligation to exercise
any of its rights or powers under the applicable indenture at the request or
direction of any of the holders of debt securities of any series unless such
holders have offered the trustee reasonable indemnity. (Section 6.1) Subject to
the foregoing, holders of a majority in principal amount of the then
outstanding debt securities of any series issued under the applicable indenture
shall have the right, subject to certain limitations, to direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee under the indenture with respect to such series. (Section 5.12) Each
indenture requires the annual filing with the trustee of a certificate by Jabil
as to whether or not it is in default under the terms of the indenture. Jabil
is also required to deliver to each trustee, within five days after becoming
aware thereof, written notice of any Event of Default or any event which after
notice or lapse of time would constitute an Event of Default. (Section 10.7)
Notwithstanding any other provision of the indentures, the holder of
any debt security shall have the right, which is absolute and unconditional, to
receive payment of the principal of
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and premium, if any, and interest, if any, on such debt security on the
respective due dates therefor (as the same may be extended in accordance with
the terms of such debt security) and to institute suit for enforcement of any
such payment, and such right shall not be impaired without the consent of such
holder.
CERTAIN DEFINITIONS
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable for a term of more than 12 months, at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term
thereof (excluding any subsequent renewal or other extension options held by
the lessee), discounted from the respective due dates thereof to such date at
the interest rate inherent in such lease (such rate to be determined by any two
of the following: the President, any Vice President, the Treasurer and the
Controller of Jabil), compounded annually. The net amount of rent required to
be paid under any such lease for any such period should be the aggregate amount
of the rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates and similar charges and contingent
rents (such as those based on sales). In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount of rent
should include the lesser of (i) the total discounted net amount of rent
required to be paid from the later of the first date upon which such lease may
be so terminated or the date of the determination of such amount of rent, as
the case may be, and (ii) the amount of such penalty (in which event no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated).
"Capital Stock" means (i) with respect to any Person organized as a
corporation, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interest in (however
designated) corporate stock, and (ii) with respect to any Person that is not
organized as a corporation, the partnership, membership or other equity
interests or participations in such Person.
"Consolidated Net Tangible Assets" means the total of all assets
reflected on a consolidated balance sheet of Jabil and its Consolidated
Subsidiaries, prepared in accordance with generally accepted accounting
principles, at their net book values (after deducting related depreciation,
depletion, amortization and all other valuation reserves which, in accordance
with such principles, should be set aside in connection with the business
conducted), but excluding goodwill, unamortized debt discount and all other
like intangible assets, all as determined in accordance with such principles,
less the aggregate of the current liabilities of Jabil and its Consolidated
Subsidiaries reflected on such balance sheet, all as determined in accordance
with such principles. For purposes of this definition, "current liabilities"
include all indebtedness for money borrowed, incurred, issued, assumed or
guaranteed by Jabil and its consolidated Subsidiaries, and other payables and
accruals, in each case payable on demand or due within one year of the date of
determination of Consolidated Net Tangible Assets, but shall exclude any
portion of long-term debt maturing within one year of the date of such
determination, all as reflected on such consolidated balance sheet of Jabil and
its Consolidated Subsidiaries, prepared in accordance with generally accepted
accounting principles.
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"Consolidated Subsidiary" means, at any date, any Subsidiary or
other entity the accounts of which would be consolidated with those of Jabil in
its consolidated financial statements if such statements were prepared as of
such date.
"Credit Facility" means the Amended and Restated Loan Agreement
dated as of April 7, 2000, among Jabil, certain subsidiaries, the banks named
therein and Bank One, N.A., as administrative agent, any amendment, extension,
renewal, substitution or replacement of such agreement, and any credit facility
providing for substantially similar security for the lenders party thereto,
entered into by Jabil within 180 days after such loan agreement or any such
amendment, extension, renewal, substitution or replacement (or in each case the
Liens granted thereunder) has been cancelled or otherwise terminated.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
Jabil or any Restricted Subsidiary of Jabil against fluctuations in currency
values.
"Funded Debt" means indebtedness created, assumed or guaranteed by
a Person for money borrowed which matures by its terms, or is renewable by the
borrower to a date, more than a year after the date of original creation,
assumption or guarantee.
"GAAP" or "generally accepted accounting principles" means
generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by Jabil's
independent public accountants) with the most recent audited consolidated
financial statements of Jabil and its Consolidated Subsidiaries.
"Indebtedness" means (a) any liability of Jabil or any Subsidiary
(1) for borrowed money, or under any reimbursement obligation relating to a
letter of credit, or (2) evidenced by a bond, note, debenture or similar
instrument, or (3) for payment obligations arising under any conditional sale
or other title retention arrangement (including a purchase money obligation)
given in connection with the acquisition of any businesses, properties or
assets of any kind, or (4) consisting of the discounted rental stream properly
classified in accordance with generally accepted accounting principles on the
balance sheet of Jabil or any Subsidiary, as lessee, as a capitalized lease
obligation, or (5) under Currency Agreements and Interest Rate Agreements, to
the extent not otherwise included in this definition; (b) any liability of
others of a type described in the preceding clause (a) to the extent that Jabil
or any Subsidiary has guaranteed or is otherwise legally obligated in respect
thereof; and (c) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to in clauses (a)
and (b) above. "Indebtedness" shall not be construed to include (x) trade
payables or credit on open account to trade creditors incurred in the ordinary
course of business or (y) obligations or liabilities incurred in connection
with the sale, transfer or other disposition of property in connection with the
securitization or other asset-based financing thereof; provided however that
any such sale, transfer or other disposition shall be for valid consideration
and shall not be to prefer directly or indirectly any holder of any other
obligation or Indebtedness of Jabil or any Subsidiary of Jabil as to any such
other obligation or Indebtedness that was already outstanding and did not
previously benefit from a Lien. Accrual of interest, accretion or amortization
of original issue discount will not be deemed to be an incurrence of
Indebtedness for purposes of the covenant restricting Funded Debt of Restricted
Subsidiaries.
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"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Lien" means, with respect to any asset, any pledge, mortgage,
charge, encumbrance or security interest in respect of such asset; provided
that any transaction (including, without limitation, any sale of accounts
receivable) which is treated as a sale of assets under GAAP shall be so treated
and any asset which is so sold shall not be deemed subject to a Lien. Pursuant
to the indenture, a contractual grant of a right of set-off does not create a
Lien in the absence of an agreement to maintain a balance against which such
right may be exercised.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Restricted Subsidiary" means, at any time, each and every
Subsidiary at least 80% (by number of votes) of the Voting Stock of which is
legally and beneficially owned by Jabil and its Wholly-Owned Restricted
Subsidiaries at such time.
"Subsidiary" means any corporation, association or other business
entity of which at the time of determination Jabil or one or more Subsidiaries
owns or controls more than 50% of the shares of Voting Stock.
"Surety Obligations" means any bonds, including bid bonds, advance
bonds, or performance bonds, letters of credits, warranties, and similar
arrangements between Jabil or any of its Restricted Subsidiaries and one or
more surety providers, for the benefit of Jabil's or any Restricted
Subsidiary's suppliers, vendors, insurers, or customers including, in each
case, any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as amended, modified,
renewed, refunded, replaced, restated or refinanced from time to time, and in
each case exclusive of obligations for the payment of borrowed money.
"Voting Stock" means stock that ordinarily has voting power for the
election of directors, managers or trustees, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted Subsidiary 100% of all of the equity interests (except directors'
qualifying shares) and voting interests of which are owned by Jabil and/or any
one or more of Jabil's other Wholly-Owned Restricted Subsidiaries at such time.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Upon the direction of Jabil, the applicable indenture shall cease
to be of further effect with respect to any series of debt securities issued
thereunder specified by Jabil (subject to the survival of certain provisions
thereof, including the obligation to pay Additional Amounts to the extent
described below) when (i) either (A) all outstanding debt securities of such
series and, in the case of bearer securities, all coupons appertaining thereto,
have been delivered to the trustee
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for cancellation (subject to certain exceptions) or (B) all debt securities of
such series and, if applicable, any coupons appertaining thereto, have become
due and payable or will become due and payable at their stated maturity within
one year or are to be called for redemption within one year and Jabil has
deposited with the trustee, in trust, funds in U.S. dollars or in the Foreign
Currency in which such debt securities are payable, in an amount sufficient to
pay the entire indebtedness on such debt securities in respect of principal
(and premium, if any) and interest to the date of such deposit (if such debt
securities have become due and payable) or to the maturity thereof, as the case
may be, (ii) Jabil has paid all other sums payable under the indenture with
respect to the debt securities of such series and (iii) certain other
conditions are met. If the debt securities of any such series provide for the
payment of Additional Amounts, Jabil will remain obligated, following such
deposit, to pay Additional Amounts on such debt securities to the extent that
the amount thereof exceeds the amount deposited in respect of such Additional
Amounts as aforesaid.
Each indenture provides that, unless the provisions of Section 4.2
thereof are made inapplicable to the debt securities of or within any series
pursuant to Section 3.1 thereof, Jabil may elect with respect to any series of
debt securities either to defease and be discharged from (i) any and all
obligations with respect to such debt securities (except for, among other
things, the obligation to pay Additional Amounts, if any, upon the occurrence
of certain events of taxation, assessment or governmental charge with respect
to payments on such debt securities to the extent that the amount thereof
exceeds the amount deposited in respect of such Additional Amounts as provided
below, and the obligations to register the transfer or exchange of such debt
securities, to replace temporary or mutilated, destroyed, lost or stolen debt
securities, to maintain an office or agency in respect of such debt securities,
to hold moneys for payment in trust, and, if applicable, to exchange or convert
such debt securities into other securities in accordance with their terms)
("defeasance") or (ii) certain restrictive covenants, if any, in the indenture
and, if indicated in the applicable prospectus supplement, its obligations with
respect to any other covenant applicable to the debt securities of such series,
and any omission to comply with such obligations shall not constitute a default
or an Event of Default with respect to the debt securities of such series
("covenant defeasance"), in either case upon the irrevocable deposit with the
trustee (or other qualifying trustee), in trust for such purpose, of an amount,
in U.S. dollars or in the Foreign Currency in which such debt securities are
payable, at stated maturity, and/or Government Obligations (as defined below)
which through the payment of principal and interest in accordance with their
terms will provide money, in an amount sufficient to pay the principal of and
any premium and any interest on (and, to the extent that (x) the debt
securities of such series provide for the payment of Additional Amounts and (y)
the amount of any such Additional Amounts is at the time of deposit reasonably
determinable by Jabil (in the exercise of its sole discretion), any such
Additional Amounts with respect to) such debt securities, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates therefor
or the applicable redemption date, as the case may be. (Section 4.2)
Such a trust may only be established if, among other things, (i)
the applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the indenture or any other
material agreement or instrument to which Jabil is a party or by which it is
bound, (ii) no Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the debt securities to be
defeased shall have occurred and be continuing on the date of establishment of
such a trust and, with respect to defeasance
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only, at any time during the period ending on the 123rd day after such date and
(iii) Jabil has delivered to the trustee an opinion of counsel (as specified in
the indenture) to the effect that the holders of such debt securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred, and such opinion of counsel, in the case of defeasance, must refer to
and be based upon a letter ruling of the Internal Revenue Service received by
Jabil, a Revenue Ruling published by the Internal Revenue Service or a change
in applicable U.S. federal income tax law occurring after the date of the
indenture. (Section 4.2)
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the euro, issued by the government of
one or more countries other than the United States of America or by any
regional confederation or association of such governments. (Section 1.1)
"Government Obligations" means debt securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such debt securities or any
Additional Amounts in respect thereof shall be payable, in each case where the
payment or payments thereunder are supported by the full faith and credit of
such government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other
government or governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of or other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by such
depository receipt. (Section 1.1)
If after Jabil has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to the debt securities of
any series, (i) the holder of any debt security of that series is entitled to,
and does, elect pursuant to Section 3.1 of the indenture or the terms of such
debt security to receive payment in a currency other than that in which such
deposit has been made in respect of such debt security or (ii) a Conversion
Event (as defined below) occurs in respect of the Foreign Currency in which
such deposit has been made, the indebtedness represented by such debt security
will be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of, any premium and interest on, and any
additional amounts with respect to, such debt security as such debt security
becomes due out of the proceeds yielded by converting the amount or other
properties so deposited in respect of such debt security into the currency in
which such debt security becomes payable as a result of
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such election or such Conversion Event based on (a) in the case of payments
made pursuant to clause (i) above, the applicable market exchange rate for such
currency in effect on the second business day prior to such payment date or (b)
with respect to a Conversion Event, the applicable market exchange rate for
such Foreign Currency in effect (as nearly as feasible) at the time of the
Conversion Event. (Section 4.2)
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community or (ii) any currency unit or composite currency for the
purposes for which it was established. (Section 1.1)
In the event Jabil effects covenant defeasance with respect to any
of the debt securities and such debt securities are declared due and payable
because of the occurrence of any Event of Default other than an Event of
Default with respect to any covenant as to which there has been covenant
defeasance, the amount in such Foreign Currency in which such debt securities
are payable, and Government Obligations on deposit with the trustee, will be
sufficient to pay amounts due on such debt securities at the time of the stated
maturity but may not be sufficient to pay amounts due on such debt securities
at the time of the acceleration resulting from such Event of Default. However,
Jabil would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting or restricting such defeasance or covenant
defeasance with respect to the debt securities of a particular series.
MODIFICATION, WAIVERS AND MEETINGS
Each indenture contains provisions permitting Jabil and the trustee
thereunder, with the consent of the holders of a majority in principal amount
of the outstanding debt securities of each series issued under the indenture
and affected by a modification or amendment, to modify or amend any of the
provisions of the indenture or of the debt securities of such series or the
rights of the holders of the debt securities of such series under the
indenture, provided that no such modification or amendment shall, without the
consent of the holder of each outstanding debt security issued under the
indenture so affected, among other things:
- change the stated maturity of the principal of, or
premium, if any, or any installment of interest, if any, on,
or any Additional Amounts with respect to any debt securities
issued under the indenture or reduce the principal amount
thereof or any redemption premium thereon or any Additional
Amounts with respect to, or reduce the rate of interest
thereon, or reduce the amount of principal of any original
issue discount securities that would be due and payable upon
an acceleration of the maturity thereof,
- adversely affect any right of repayment at the option of any
holder, or change any place where, or the currency in which,
any debt securities issued under the indenture are payable,
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- affect the ranking, or with respect to collateral the
priority or security, of the debt securities of each
applicable series secured pursuant to Article 16 of the
senior indenture (other than as expressly permitted in
Article 16 or the supplemental indenture relating to such
series or the terms of the securities, in each case at the
time of issuance of such securities), in a manner adverse to
the holders of such securities,
- make any change that adversely affects the right to convert
or exchange any debt security into or for shares of common
stock of Jabil or other securities (whether or not issued by
Jabil), cash or property in accordance with its terms,
- modify any of the provisions of the subordinated indenture
relating to the subordination of the subordinated debt
securities in a manner adverse to holders of subordinated
debt securities,
- impair the holder's right to institute suit to enforce the
payment of any such debt securities on or after the stated
maturity thereof or
- reduce the aforesaid percentage in principle amount of debt
securities of any series issued under the indenture, the
consent of the holders of which is required for any such
modification or amendment or the consent of whose holders is
required for any waiver (of compliance with certain
provisions of the indenture or certain defaults thereunder
and their consequences) or reduce the requirements for a
quorum or voting at a meeting of holders of such debt
securities.
In addition, no supplemental indenture may directly or indirectly
modify or eliminate the subordination provisions of the subordinated indenture
in any manner which might terminate or impair the subordination of the
subordinated debt securities of any series to Senior Indebtedness with respect
to such series without the prior written consent of the holders of such Senior
Indebtedness. (Section 9.7 of the subordinated indenture)
Each indenture also contains provisions permitting Jabil and the
trustee, without the consent of the holders of any debt securities issued
thereunder, to modify or amend the indenture in order, among other things:
- to add to the covenants of Jabil made in the indenture for
the benefit of the holders of any series of the debt
securities or to surrender any right or power conferred upon
Jabil by the indenture,
- to add to the Events of Default or the covenants of Jabil for
the benefit of the holders of all or any series of debt
securities issued under the indenture,
- to add or change any provisions of the indenture to
facilitate the issuance of bearer securities, to change any
restrictions on the payment of principal of, any premium of
interest on or any Additional Amounts with respect to any
series of debt securities,
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- to establish the form or terms of debt securities of any
series and any related coupons,
- to provide for the acceptance of appointment by a successor
trustee, or to add to or change the provisions of the
indenture to facilitate the administration of the trusts,
where applicable,
- to secure the debt securities,
- to provide for conversion or exchange rights of the holders
of any series of debt securities,
- to cure any ambiguity or correct or supplement any provision
therein which may be inconsistent with other provisions
therein, or to make any other provisions with respect to
matters or questions arising under the indenture which shall
not materially and adversely affect the interests of the
holders of any series of debt securities issued thereunder in
any material respect,
- to amend or supplement any provision contained in the
indenture, provided that such amendment or supplement does
not apply to any outstanding debt securities issued prior to
the date of such amendment or supplement and entitled to the
benefits of such provision or
- to amend or supplement any provision therein or in any
supplemental indenture, provided that no such amendment or
supplement shall materially and adversely affect the
interests of the holders of any debt securities then
outstanding under the applicable indenture.
The holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may waive compliance by Jabil with
certain restrictive provisions of the applicable indenture to the extent
described in the prospectus supplement. The holders of a majority in aggregate
principal amount of the outstanding debt securities of any series may, on behalf
of all holders of debt securities of that series, waive any past default under
the applicable indenture with respect to debt securities of that series and its
consequences, except a default in the payment of the principal of, or premium,
if any, or interest, if any, on, or any Additional Amounts with respect to any
of the debt securities of such series or in respect of a covenant or provision
which cannot be modified or amended without the consent of each holder of the
outstanding debt securities of such series so affected.
Each indenture contains provisions for convening meetings of the
holders of debt securities of a series issued thereunder. A meeting may be
called at any time by the trustee, and also, upon request, by Jabil or the
holders of at least 10% in principal amount of the outstanding debt securities
of such series, in any such case upon notice given in accordance with the
provisions of the indenture. Except for any consent which must be given by the
holder of each outstanding debt security affected thereby, as described above,
any resolution presented at a meeting or adjourned meeting duly reconvened at
which a quorum (as described below) is present may be adopted by the affirmative
vote of the holders of a majority in principal amount
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of the outstanding debt securities of that series. However, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which may be made, given or taken by the holders of a
specified percentage, which is less than a majority in principal amount of the
outstanding debt securities of a series, may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal
amount of the outstanding debt securities of that series. Any resolution passed
or decision taken at any meeting of holders of debt securities of any series
duly held in accordance with the indenture will be binding on all holders of
debt securities of that series and the related coupons (if any). The quorum at
any meeting called to adopt a resolution, and at any reconvened meeting, will
be persons holding or representing a majority in principal amount of the
outstanding debt securities of a series, subject to certain exceptions.
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of
outstanding debt securities have given any request, demand, authorization,
direction, notice, consent or waiver under the applicable indenture,
- the portion of the principal amount of an original issue
discount security that shall be deemed to be outstanding for
such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon a
declaration of acceleration thereof pursuant to the terms of
such original issue discount security as of the date of such
determination,
- the principal amount of any Indexed Security that shall be
deemed to be outstanding for such purpose shall be the
principal face amount of such Indexed Security determined on
the date of its original issuance and
- any debt security owned by Jabil or any obligor on such debt
security or any affiliate of Jabil or such other obligor
shall be deemed not to be outstanding.
GOVERNING LAW
The indentures and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
REGARDING THE TRUSTEES
The Trust Indenture Act contains limitations on the rights of a
trustee, should it become a creditor of Jabil, to obtain payment of claims in
certain cases or to realize on certain property received by it in respect of any
such claims, as security or otherwise. Each trustee is permitted to engage in
other transactions with Jabil and its subsidiaries from time to time, provided
that if the trustee acquires any conflicting interest it must eliminate such
conflict upon the occurrence of an Event of Default under the applicable
indenture, or else resign.
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DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 260,000,000 shares. Those
shares consist of (1) 250,000,000 shares designated as common stock, $0.001 par
value per share and (2) 10,000,000 shares designated as preferred stock, $0.001
par value per share. The only equity securities currently outstanding are
shares of common stock. As of April 30, 2000, there were approximately
176,874,684 shares of common stock issued and outstanding.
COMMON STOCK
Our common stock is listed on the New York Stock Exchange under the
symbol "JBL." Holders of common stock are entitled to receive dividends
declared by the Board of Directors, out of funds legally available for the
payment of dividends, subject to the rights of holders of preferred stock.
Currently, we are not paying a dividend. Each holder of common stock is
entitled to one vote per share. Upon any liquidation, dissolution or winding up
of our business, the holders of common stock are entitled to share equally in
all assets available for distribution after payment of all liabilities and
provision for liquidation preference of shares of preferred stock then
outstanding. The holders of common stock have no preemptive rights and no
rights to convert their common stock into any other securities. There are also
no redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are fully paid and nonassessable.
PREFERRED STOCK
The following description of preferred stock and the description of
the terms of a particular series of preferred stock that will be set forth in
the related prospectus supplement are not complete. These descriptions are
qualified in their entirety by reference to the certificate of designation
relating to that series. The rights, preferences, privileges and restrictions
of the preferred stock of each series will be fixed by the certificate of
designation relating to that series. The prospectus supplement also will
contain a description of certain United States federal income tax consequences
relating to the purchase and ownership of the series of preferred stock that is
described in the prospectus supplement.
As of April 30, 2000, there were no shares of preferred stock
outstanding. The Board of Directors has the authority, without further action
by the stockholders, to issue up to 10,000,000 shares of preferred stock in one
or more series and to fix the following terms of the preferred stock.
Any or all of the rights of the preferred stock may be greater than
the rights of the common stock.
The prospectus supplement will specify as to each issuance of
preferred stock:
- the maximum number of shares,
- the designation of the shares,
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- the annual dividend rate, if any, whether the dividend rate
is fixed or variable, the date dividends will accrue, the
dividend payment dates and whether dividends will be
cumulative,
- the price and the terms and conditions for redemption, if
any, including redemption at our option or at the option of
the holders, including the time period for redemption, and
any accumulated dividends or premiums,
- the liquidation preference, if any, and any accumulated
dividends upon the liquidation, dissolution or winding up of
Jabil's affairs,
- any sinking fund or similar provision, and, if so, the terms
and provisions relating to the purpose and operation of the
fund,
- the terms and conditions, if any, for conversion or exchange
of shares into or for any other class or classes of our
capital stock or any series of any other class or classes, or
into or for any other series of the same class, or any other
securities or assets, including the price or the rate of
conversion or exchange and the method, if any, of adjustment,
- the voting rights, if any, and
- any or all other preferences and relative, participating,
optional or other special rights, privileges or
qualifications, limitations or restrictions.
Preferred stock will be fully paid and nonassessable upon issuance. The
preferred stock or any series of preferred stock may be represented, in whole or
in part, by one or more global certificates, which will represent an aggregate
number of shares equal to that of the preferred stock represented by the global
certificate.
Each global certificate will:
- be registered in the name of a depositary or a nominee of the
depositary identified in the prospectus supplement,
- be deposited with such depositary or nominee or a custodian
for the depositary and
- bear a legend regarding any restrictions on exchanges and
registration of transfer and any other matters as may be
provided for under the certificate of designation.
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DESCRIPTION OF DEPOSITARY SHARES
GENERAL
Jabil may elect to offer depositary shares, each representing a
fraction (to be set forth in the prospectus supplement relating to a particular
series of shares of preferred stock) of a share of a particular series of
shares of preferred stock as described below. In the event Jabil elects to do
so, depositary receipts evidencing depositary shares will be issued to the
public.
The shares of any class or series of shares of preferred stock
represented by depositary shares will be deposited under a deposit agreement
among Jabil, a depositary selected by Jabil and the holders of the depositary
receipts. The depositary will be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000. Subject to the terms of the deposit agreement, each owner of
a depositary share will be entitled, in proportion to the applicable fraction
of a preferred share represented by such depositary share, to all the rights
and preferences of the shares of preferred stock represented thereby (including
dividend, voting, redemption and liquidation rights).
The depositary shares will be evidenced by depositary receipts
issued pursuant to the deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional shares of the related
class or series of shares of preferred stock in accordance with the terms of
the offering described in the related prospectus supplement. Copies of the
forms of deposit agreement and depositary receipt will be filed as exhibits to
or incorporated by reference in the registration statement of which this
prospectus forms a part, and the following summary is qualified in its entirety
by reference to such exhibits.
Pending the preparation of definitive depositary receipts, the
depositary may, upon the written order of Jabil, issue temporary depositary
receipts substantially identical to (and entitling the holders thereof to all
the rights pertaining to) the definitive depositary receipts but not in
definitive form. Definitive depositary receipts will be prepared thereafter
without unreasonable delay, and temporary depositary receipts will be
exchangeable for definitive depositary receipts without charge to the holder
thereof.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other
distributions received in respect of the related class or series of shares of
preferred stock to the record holders of depositary shares relating to such
class or series of shares of preferred stock in proportion to the number of
such depositary shares owned by such holders.
In the event of a distribution other than in cash, the depositary
will distribute property received by it to the record holders of depositary
shares entitled thereto, unless the depositary determines that it is not
feasible to make such distribution, in which case the depositary may, with the
approval of Jabil, sell such property and distribute the net proceeds from such
sale to such holders.
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WITHDRAWAL OF SHARES
Upon surrender of the depositary receipts at the corporate trust
office of the depositary (unless the related depositary shares have previously
been called for redemption), the holder of the depositary shares evidenced
thereby is entitled to delivery of the number of whole shares of the related
class or series of shares of preferred stock and any money or other property
represented by such depositary shares. Holders of depositary shares will be
entitled to receive whole shares of the related class or series of shares of
preferred stock on the basis set forth in the prospectus supplement for such
class or series of shares of preferred stock, but holders of such whole shares
of preferred stock will not thereafter be entitled to exchange them for
depositary shares. If the depositary receipts delivered by the holder evidence
a number of depositary shares in excess of the number of depositary shares
representing the number of whole shares of preferred stock to be withdrawn, the
depositary will deliver to such holder at the same time a new depositary
receipt evidencing such excess number of depositary shares. In no event will
fractional shares of preferred stock be delivered upon surrender of depositary
receipts to the depositary.
REDEMPTION OF DEPOSITARY SHARES
Whenever Jabil redeems shares of preferred stock held by the
depositary, the depositary will redeem as of the same redemption date the
number of depositary shares representing shares of the related class or series
of shares of preferred stock so redeemed. The redemption price per depositary
share will be equal to the applicable fraction of the redemption price per
share payable with respect to such class or series of shares of preferred
stock. If less than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro rata as may be
determined by the depositary.
VOTING THE SHARES OF PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
shares of preferred stock are entitled to vote, the depositary will mail the
information contained in such notice of meeting to the record holders of the
depositary shares relating to such shares of preferred stock. Each record
holder of such depositary shares on the record date (which will be the same
date as the record date for the shares of preferred stock) will be entitled to
instruct the depositary as to the exercise of the voting rights pertaining to
the amount of the class or series of shares of preferred stock represented by
such holder's depositary shares. The depositary will endeavor, insofar as
practicable, to vote the number of shares of preferred stock represented by
such depositary shares in accordance with such instructions, and Jabil will
agree to take all action which the depositary deems necessary in order to
enable the depositary to do so. The depositary will abstain from voting shares
of preferred stock to the extent it does not receive specific instructions from
the holders of depositary shares representing such shares of preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and
any provision of the deposit agreement may at any time be amended by agreement
between Jabil and the depositary. However, any amendment which materially and
adversely alters the rights of the holders of
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depositary receipts will not be effective unless such amendment has been
approved by the holders of depositary receipts representing at least a majority
(or, in the case of amendments relating to or affecting rights to receive
dividends or distributions or voting or redemption rights, 66%, unless
otherwise provided in the related prospectus supplement) of the depositary
shares then outstanding. The deposit agreement may be terminated by Jabil or
the depositary only (1) if all outstanding depositary shares have been
redeemed, (2) if there has been a final distribution in respect of the related
class or series of shares of preferred stock in connection with any
liquidation, dissolution or winding up of Jabil and such distribution has been
distributed to the holders of depositary receipts or (3) upon the consent of
holders of depositary receipts representing not less than 66% of the depositary
shares outstanding.
CHARGES OF DEPOSITARY
Jabil will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. Jabil
will pay charges of the depositary in connection with the initial deposit of
the related class or series of shares of preferred stock and any redemption of
such shares of preferred stock. Holders of depositary receipts will pay all
other transfer and other taxes and governmental charges and such other charges
as are expressly provided in the deposit agreement to be for their accounts.
The depositary may refuse to effect any transfer of a depositary
receipt or any withdrawal of shares of a class or series of preferred stock
evidenced thereby until all taxes and charges with respect to the depositary
receipt or shares of preferred stock are paid by the holders thereof.
MISCELLANEOUS
The depositary will forward all reports and communications from
Jabil which are delivered to the depositary and which Jabil is required to
furnish to the holders of the shares of preferred stock.
Neither the depositary nor Jabil will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the deposit agreement. The obligations of Jabil and the
depositary under the deposit agreement will be limited to performance in good
faith of their duties thereunder, and neither Jabil nor the depositary will be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or class or series of shares of preferred stock unless
satisfactory indemnity is furnished. Jabil and the depositary may rely on
written advice of counsel or accountants, or information provided by persons
presenting shares of preferred stock for deposit, holders of depositary shares
or other persons believed to be competent and on the documents believed to be
genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to Jabil notice
of its election to do so, and Jabil may at any time remove the depositary. Any
such resignation or removal of the depositary will take effect upon the
appointment of a successor depositary, which successor must be appointed within
60 days after delivery of the notice of resignation or removal and must be a
bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
47
<PAGE> 49
DESCRIPTION OF WARRANTS
Jabil has no warrants outstanding (other than options issued under its
employee stock option plans). Jabil may issue warrants for the purchase of debt
securities, common stock or preferred stock. Warrants may be issued
independently or together with any other securities offered by any prospectus
supplement and may be attached to or separate from such securities. Each series
of warrants will be issued under a separate warrant agreement to be entered into
between Jabil and a warrant agent specified in the applicable prospectus
supplement. The warrant agent will act solely as an agent of Jabil in connection
with the warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders of the warrants. Further
terms of the warrants and the applicable warrant agreements will be set forth in
the applicable prospectus supplement. Copies of the form of warrant agreement
and warrant will be filed as exhibits to or incorporated by reference in the
registration statement of which this prospectus forms a part, and the following
summary is qualified in its entirety by reference to such exhibits.
The applicable prospectus supplement will describe the terms of the
warrants, including, where applicable, the following:
- the title of the warrants,
- the aggregate number of warrants,
- the price or prices at which warrants will be issued,
- the designation, terms and number of securities purchasable
upon exercise of warrants,
- the designation and terms of the securities, if any, with
which warrants are issued and the number of warrants issued
with each security,
- the date, if any, on and after which warrants and the related
securities will be separately transferable,
- the price at which each security purchasable upon exercise of
warrants may be purchased,
- the date on which the right to exercise the warrants shall
commence and the date on which that right shall expire,
- the minimum and/or maximum amount of warrants which may be
exercised at any one time,
- information with respect to book-entry procedures, if any,
and
- any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
48
<PAGE> 50
PLAN OF DISTRIBUTION
We may offer and sell the securities directly or to or through
underwriting syndicates represented by managing underwriters, to or through
underwriters without a syndicate, or through dealers or agents. The prospectus
supplement with respect to the offered securities will set forth the terms of
the offering, including the following:
- the name or names of any underwriters, dealers or agents,
- the purchase price and the proceeds we will receive from
the sale,
- any underwriting discounts, agency fees and other items
constituting underwriters' or agents' compensation and
- the initial public offering price and any discounts or
concessions allowed, re-allowed or paid to dealers.
If any underwriters are involved in the offer and sale, the
securities will be acquired by the underwriters and may be resold by them,
either at a fixed public offering price established at the time of offering or
from time to time in one or more negotiated transactions or otherwise, at
prices related to prevailing market prices determined at the time of sale.
Unless otherwise set forth in the applicable prospectus supplement, the
obligations of the underwriters to purchase the securities will be subject to
conditions precedent and the underwriters will be obligated to purchase all the
securities described in the prospectus supplement if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
We may offer and sell the securities directly or through an agent
or agents designated by us from time to time. An agent may sell securities it
has purchased from us as principal to other dealers for resale to investors and
other purchasers, and may reallow all or any portion of the discount received
in connection with the purchase from us to the dealers. After the initial
offering of the securities, the offering price (in the case of securities to be
resold at a fixed offering price), the concession and the discount may be
changed. Any agent participating in the distribution of the securities may be
deemed to be an "underwriter," as that term is defined in the Securities Act of
1933, of the securities so offered and sold.
Underwriters, dealers and agents may be entitled, under agreements
entered into with us, to indemnification by us against some liabilities,
including liabilities under the Securities Act of 1933.
The place and time of delivery for the securities in respect of
which this prospectus is delivered will be set forth in the applicable
prospectus supplement if appropriate.
Unless otherwise indicated in the prospectus supplement, each
series of offered securities will be a new issue of securities for which there
currently is no market (other than our common stock, which is listed on the
NYSE). Any underwriters to whom securities are sold for public offering and
sale may make a market in such series of securities as permitted by applicable
laws and regulations, but such underwriters will not be obligated to do so, and
any such market
49
<PAGE> 51
making may be discontinued at any time without notice. Accordingly, there can
be no assurance as to the development or liquidity of any market for the
securities. The securities may or may not be listed on a national securities
exchange or for quotation through the National Association of Securities
Dealers Automated Quotation System.
Underwriters, agents and dealers may engage in transactions with or
perform services, including various investment banking and other services, for
us and/or any of our affiliates in the ordinary course of business.
50
<PAGE> 52
LEGAL MATTERS
Certain legal matters with respect to the validity of the securities
offered hereby will be passed upon for Jabil by Holland & Knight LLP, Tampa,
Florida, and for any underwriters, dealers or agents by counsel named in the
applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Jabil as of August 31, 1998
and 1999 and for each of the years in the three-year period ended August 31,
1999, have been incorporated by reference herein and in the registration
statement in reliance upon the reports of KPMG LLP and Ernst & Young LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firms as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Those reports, proxy statements and other
information may be obtained:
- At the Public Reference Room of the SEC, Room 1024-Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
- At the public reference facilities at the SEC's regional
offices located at Seven World Trade Center, 13th Floor, New
York, New York 10048 or Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661,
- From the SEC, Public Reference Section, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549,
- At the offices of The New York Stock Exchange, 20 Broad
Street, New York, New York 10005 and
- From the Internet site maintained by the SEC at
http://www.sec.gov, which contains reports, proxy and
information statements and other information regarding
issuers that file electronically with the SEC.
Some locations may charge prescribed or modest fees for copies.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings
51
<PAGE> 53
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities, or after the date of
this initial registration statement and before the effectiveness of the
registration statement.
- Annual Report on Form 10-K for the year ended August 31, 1999
filed with the SEC on November 12, 1999 (including
information specifically incorporated by reference into our
Form 10-K from our definitive Proxy Statement for our 1999
Annual Meeting of Stockholders filed with the SEC on November
22, 1999).
- Quarterly Report on Form 10-Q filed with the SEC on January
14, 2000.
- Quarterly Report on Form 10-Q filed with the SEC on April 13,
2000.
- Current Report on Form 8-K filed with the SEC on September
28, 1999.
- Amended Current Report on Form 8-K/A filed with the SEC on
November 29, 1999.
- Amended Current Report on Form 8-K/A filed with the SEC on
December 10, 1999.
- Current Report on Form 8-K filed with the SEC on December 20,
1999.
- Current Report on Form 8-K filed with the SEC on March 16,
2000.
- Current Report on Form 8-K filed with the SEC on March 29,
2000.
- Current Report on Form 8-K filed with the SEC on May 10,
2000.
- The description of Jabil's common stock contained in Jabil's
registration statement on Form 8-A dated April 28, 1998.
On request we will provide at no cost to each person, including any
beneficial owner, who receives a copy of this prospectus, a copy of any or all
of the documents incorporated in this prospectus by reference. We will not
provide exhibits to any of such documents, however, unless such exhibits are
specifically incorporated by reference into those documents. Written or
telephone requests for such copies should be addressed to Jabil's principal
executive offices, attention: Beth A. Walters, Vice President-Communications,
10560 Ninth Street North, St. Petersburg, Florida 33716, telephone number (727)
577-9749.
52
<PAGE> 54
$750,000,000
JABIL CIRCUIT, INC.
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK,
DEPOSITARY SHARES AND WARRANTS
----------------------------
PROSPECTUS
----------------------------
, 2000
<PAGE> 55
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate (other than the SEC Registration Fee) of
the fees and expenses all of which are payable by the Registrant, in connection
with the registration and sale of the securities being registered:
<TABLE>
<S> <C>
Commission Registration Fee............................................................................... $ 208,500
Trustee's Fees and Expenses .............................................................................. 25,000
Rating Agencies' Fees .................................................................................... 162,500
Transfer Agent and Registrar Fees and Expenses............................................................ 25,000
Legal Fees and Expenses................................................................................... 650,000
Accounting Fees and Expenses.............................................................................. 50,000
Printing, Engraving and Mailing Expenses.................................................................. 50,000
Miscellaneous............................................................................................. 22,000
Total..................................................................................................... $1,193,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 145 of the General Corporation Law of the
State of Delaware ("DGCL"), each director and officer of the Registrant may be
indemnified by the Registrant against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with the defense or settlement of any threatened,
pending or completed legal proceedings in which he is involved by reason of the
fact that he is or was a director or officer of the Registrant if he acted in
good faith and in a manner that he reasonably believed to be in or not opposed
to the best interests of the Registrant and, with respect to any criminal
action or proceeding, if he had no reasonable cause to believe that his conduct
was unlawful. If the legal proceeding, however, is by or in the right of the
Registrant, the director or officer may not be indemnified in respect of any
claim, issue or matter as to which he shall have been adjudged to be liable to
the Registrant unless a court determines otherwise.
Article Tenth of the Registrant's Certificate of Incorporation provides
for mandatory indemnification of the Registrant's directors, officers and
employees and Article VI of the Registrant's Bylaws provide for permissible
indemnification of other agents to the maximum extent permitted by the DGCL.
The Registrant has entered into Indemnification Agreements with its officers
and directors with further indemnification to the maximum extent permitted by
the DGCL.
II-1
<PAGE> 56
The general effect of the foregoing provisions may be to reduce the
circumstances in which an officer or director may be required to bear the
economic burden of the foregoing liabilities and expense.
The form(s) of proposed Underwriting Agreement(s) to be filed as (an)
Exhibit(s) hereto or incorporated by reference herein may include provisions
regarding the indemnification of our officers and directors by the several
Underwriters.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- ----------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement.
4.1 Certificate of Incorporation.+
4.2 Form of Senior Indenture.
4.3 Form of Subordinated Indenture.
4.4 Form of Senior Debt Security*.
4.5 Form of Subordinated Debt Security*.
4.6 Form of Convertible Debt Security*.
4.7 Form of Preferred Stock Certificate of Designation*.
4.8 Form of Warrant*.
4.9 Form of Warrant Agreement*.
4.10 Form of Deposit Agreement*.
4.11 Form of Pledge Agreement*.
4.12 Form of Intercreditor Agreement*.
5.1 Opinion of Holland & Knight LLP.
12.1 Computation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of KPMG LLP.
23.2 Consent of Ernst & Young LLP
23.3 Consent of Holland & Knight LLP (included in Exhibit 5.1).
24.1 Power of Attorney of certain directors and officers of Jabil (set forth on the signature page of the
registration statement as filed on November 29, 1999).
</TABLE>
II-2
<PAGE> 57
25.1 Form T-1 Statement of Eligibility of Trustee for Senior Indenture under
the Trust Indenture Act of 1939.
25.2 Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture
under the Trust Indenture Act of 1939.
+ Incorporated by reference to the Company's Quarterly Report on Form
10-Q filed with the SEC on April 13, 2000.
* To be filed with a Current Report on Form 8-K or a Post-Effective
Amendment to Registration Statement.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act,
(b) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective Registration Statement,
(c) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement,
provided, however, that clauses (a) and (b) do not
apply if the information required to be included in
a post-effective amendment by such clauses is
contained in periodic reports filed with or
furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")
that are incorporated by reference in the
Registration Statement.
II-3
<PAGE> 58
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange
Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to its Certificate of Incorporation, Bylaws, by agreement
or otherwise, the Registrant has been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance on Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
Rule 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was
declared effective; and
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-4
<PAGE> 59
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in St. Petersburg, Florida on May 16, 2000.
JABIL CIRCUIT, INC.
By: /s/ Chris A. Lewis
------------------------------------
Name: Chris A. Lewis
Title: Chief Financial Officer
Pursuant to the requirements of the Securities Act, as amended, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities indicated on May 16, 2000.
<TABLE>
<CAPTION>
Signature Title
----------- -----
<S> <C>
* Chairman of the Board and Chief Executive
------------------------------ Officer
William D. Morean (Principal Executive Officer)
/s/ Chris A. Lewis Chief Financial Officer (Principal Financial
------------------------------ Officer)
Chris A. Lewis
* Vice Chairman and Director
------------------------------
Thomas A. Sansone
* Director
------------------------------
Mel S. Lavitt
* President and Director
------------------------------
Timothy L. Main
* Director
------------------------------
Lawrence J. Murphy
</TABLE>
II-5
<PAGE> 60
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
* Director
------------------------------
Steven A. Raymund
* Director
------------------------------
Frank A. Newman
By: /s/ Chris A. Lewis
---------------------------
Chris A. Lewis
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 61
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- ----------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement.
4.1 Certificate of Incorporation.+
4.2 Form of Senior Indenture.
4.3 Form of Subordinated Indenture.
4.4 Form of Senior Debt Security*.
4.5 Form of Subordinated Debt Security*.
4.6 Form of Convertible Debt Security*.
4.7 Form of Preferred Stock Certificate of Designation*.
4.8 Form of Warrant*.
4.9 Form of Warrant Agreement*.
4.10 Form of Deposit Agreement*.
4.11 Form of Pledge Agreement*.
4.12 Form of Intercreditor Agreement*.
5.1 Opinion of Holland & Knight LLP.
12.1 Computation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of KPMG LLP.
23.2 Consent of Ernst & Young LLP
23.3 Consent of Holland & Knight LLP (included in Exhibit 5.1).
24.1 Power of Attorney of certain directors and officers of Jabil (set forth on the signature page of the
registration statement as filed on November 29, 1999).
25.1 Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939.
25.2 Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939.
+ Incorporated by reference to the Company's Quarterly Report on Form 10-Q filed with the SEC on April
13, 2000.
* To be filed with a Current Report on Form 8-K or a Post-Effective Amendment to Registration Statement.
</TABLE>
II-7
<PAGE> 1
EXHIBIT 1.1
JABIL CIRCUIT, INC.
(A DELAWARE CORPORATION)
UNDERWRITING AGREEMENT BASIC TERMS
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1. Representations and Warranties by the Company........................................................ 4
(a) Compliance with Registration Requirements.......................................................... 4
(b) Incorporated Documents............................................................................. 5
(c) Independent Accountants............................................................................ 5
(d) Financial Statements............................................................................... 5
(e) No Material Adverse Change in Business............................................................. 5
(f) Good Standing of the Company....................................................................... 5
(g) Good Standing of Subsidiaries...................................................................... 6
(h) Capitalization..................................................................................... 6
(i) Authorization, etc. of Agreements.................................................................. 6
(j) Authorization of Common Stock...................................................................... 6
(k) Authorization of Preferred Stock and/or Depositary Shares.......................................... 7
(l) Authorization of Deposit Agreement................................................................. 7
(m) Authorization and Enforceability of the Indenture.................................................. 7
(n) Authorization and Enforceability of the Security Documents......................................... 8
(o) Authorization and Enforceability of Senior Debt Securities and/or
Subordinated Debt Securities, etc.................................................................. 8
(p) Authorization of Warrants.......................................................................... 9
(q) Authorization of Warrant Agreement................................................................. 9
(r) Authorization of Underlying Securities............................................................. 9
(s) Descriptions of the Offered Securities, Underlying Securities, Indentures,
Deposit Agreement and Warrant Agreement............................................................ 10
(t) Absence of Defaults and Conflicts.................................................................. 10
(u) Absence of Further Requirements.................................................................... 11
(v) Absence of Labor Dispute........................................................................... 11
(w) Absence of Proceedings............................................................................. 11
(x) Accuracy of Exhibits............................................................................... 12
(y) Possession of Licenses and Permits................................................................. 12
(z) Possession of Intellectual Property................................................................ 12
(aa) Title to Property.................................................................................. 12
(bb) Investment Company Act............................................................................. 13
(cc) Environmental Laws................................................................................. 13
(dd) Absence of Year 2000 Problem....................................................................... 13
SECTION 2. Purchase and Sale.................................................................................... 14
(a) Initial Securities................................................................................. 14
(b) Option Securities.................................................................................. 14
(c) Payment, Denominations and Registration............................................................ 15
(d) Delayed Delivery Contracts......................................................................... 15
SECTION 3. Covenants of the Company............................................................................. 16
(a) Preparation of Prospectus Supplement............................................................... 16
(b) Continued Compliance With Securities Laws.......................................................... 16
(c) Rule 158........................................................................................... 17
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
(d) Filing of Additional Registration Statements or Amendments......................................... 17
(e) Compliance with Commission Requests and Notification of Ratings Changes............................ 17
(f) Delivery of Registration Statements and Prospectuses............................................... 18
(g) Blue Sky Qualifications............................................................................ 18
(h) Compliance with 1934 Act........................................................................... 18
(i) Restriction on Offers and Sales of Securities...................................................... 18
(j) Reservation of Securities.......................................................................... 19
(k) Listing............................................................................................ 19
SECTION 4. Conditions of Underwriters' Obligations.............................................................. 19
(a) Effectiveness of Registration Statement............................................................ 19
(b) Opinions of Counsel................................................................................ 19
(i) Opinion of Counsel for Company................................................................ 19
(ii) Opinion of Local Counsel for Company's Non-U.S. Subsidiaries.................................. 27
(iii)Opinion of Patent Counsel for the Company..................................................... 28
(iv) Opinion of Counsel for Underwriters........................................................... 29
(c) Officer's Certificate.............................................................................. 30
(d) Accountants' Comfort Letters....................................................................... 30
(e) Approval of Listing................................................................................ 31
(f) No Objection....................................................................................... 31
(g) Lock-up Agreements................................................................................. 31
(h) Additional Documents............................................................................... 31
(i) Conditions to Purchase of Option Securities........................................................ 31
SECTION 5. Payment of Expenses.................................................................................. 32
SECTION 6. Indemnification...................................................................................... 34
SECTION 7. Contribution......................................................................................... 36
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....................................... 37
SECTION 9. Termination.......................................................................................... 37
SECTION 10. Default............................................................................................. 38
SECTION 11. Notices............................................................................................. 39
SECTION 12. Parties............................................................................................. 39
SECTION 13. Governing Law....................................................................................... 40
SECTION 14. Counterparts........................................................................................ 40
EXHIBIT A. Terms Agreement..................................................................................... A-1
EXHIBIT B. Delayed Delivery Contract........................................................................... B-1
</TABLE>
ii
<PAGE> 4
JABIL CIRCUIT, INC.
Common Stock, Warrants to Purchase Shares of Common Stock,
Preferred Stock, Warrants to Purchase Shares of Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT BASIC TERMS
Jabil Circuit, Inc., a Delaware corporation (the "Company"), may issue
and sell from time to time its (i) shares of Common Stock, par value $0.001 per
share (the "Common Stock"), (ii) warrants to purchase Common Stock (the "Common
Stock Warrants"), (iii) shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock"), (iv) warrants to purchase Preferred Stock (the
"Preferred Stock Warrants"), (v) senior or subordinated debt securities (the
"Debt Securities"), or (vi) warrants to purchase Debt Securities (the "Debt
Security Warrants"), or any combination thereof, from time to time, in or
pursuant to one or more offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion or exchange provisions (and terms of the
related Underlying Securities (as defined below)) and any other variable terms
as set forth in the applicable certificate of designations, preferences and
rights (each, the "Certificate of Designations, Preferences and Rights")
relating to such series of Preferred Stock. A series of Preferred Stock may be
represented by depositary shares (the "Depositary Shares") that are evidenced by
depositary receipts (the "Depositary Receipts") issued pursuant to a deposit
agreement (each, a "Deposit Agreement") among the Company, the depositary
identified therein (the "Depositary") and the registered holders of the
Depositary Receipts issued thereunder.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
______________, 2000 (the "Senior Indenture"), between the Company and The Bank
of New York, as trustee (the "Senior Trustee"), or as subordinated indebtedness
(the "Subordinated Debt Securities") under an indenture, dated as of
______________, 2000 (the "Subordinated Indenture", and collectively with the
Senior Indenture, the "Indentures", and each, an "Indenture"), between the
Company and The Bank of New York, as trustee (the "Subordinated Trustee", and
collectively with the Senior Trustee, the "Trustees", and each, a "Trustee").
Each series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of
<PAGE> 5
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements, conversion or exchange provisions (and terms of the
related Underlying Securities) and any other variable terms established by or
pursuant to the applicable Indenture. Senior Debt Securities may be issued with
the benefit of the security provided pursuant to Article 16 of the Senior
Indenture ("Secured Senior Debt Securities") under a pledge agreement or other
similar agreement (the "Pledge Agreement") between the Company and a collateral
agent or other party specified in the Pledge Agreement acting on behalf of the
holders of Secured Senior Debt Securities and the other creditors specified
therein (the "Collateral Agent") and an intercreditor agreement or other similar
agreement (the "Intercreditor Agreement" and, together with the Pledge
Agreement, the "Security Documents") among the Company, the Collateral Agent,
the Senior Trustee and representatives of certain other creditors of the
Company.
Each issue of Common Stock Warrants, Preferred Stock Warrants and Debt
Security Warrants (collectively, the "Warrants") will be issued pursuant to a
separate warrant agreement (each, a "Warrant Agreement") between the Company and
the warrant agent identified therein (each, a "Warrant Agent"). The Warrants may
vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise price(s), expiration date(s) and terms of
the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Depositary Shares, Senior
Debt Securities, Subordinated Debt Securities or Debt Security Warrants, or any
combination thereof, initially issuable by the Company and "Underlying
Securities" shall mean the Common Stock, Preferred Stock, Depositary Shares,
Senior Debt Securities or Subordinated Debt Securities issuable upon exercise of
the Warrants, as applicable, or upon conversion of the Preferred Stock,
Depositary Shares, Senior Debt Securities or Subordinated Debt Securities, as
applicable.
Whenever the Company determines to make an offering of Securities, the
Company will enter into an agreement (the "Terms Agreement") providing for the
sale of such securities (the "Offered Securities") to, and the purchase and
offering thereof by, one or more underwriters specified in the Terms Agreement
(the "Underwriters", which term shall include any Underwriters substituted
pursuant to Section 10 hereof). The Terms Agreement relating to the Offered
Securities shall specify the names of the Underwriters participating in such
offering, the amount of Offered Securities which each such Underwriter severally
agrees to purchase, the price at which the Offered Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, the time and place of delivery and payment, such other information as is
indicated in Exhibit A hereto and such other terms as are agreed upon by the
Company and the Underwriters. In addition, each Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Offered Securities to cover over-allotments, if any, and the
amount of Offered Securities subject to such option (the "Option Securities").
As used herein, the term "Offered Securities" shall include the Option
Securities, if any, and "Representatives" shall mean the Underwriter or
Underwriters so specified in the Terms Agreement or, if no Underwriter is so
specified, shall mean each Underwriter. The Terms Agreement may be in the form
of an exchange of any standard form of written telecommunication between the
Underwriters and the Company. The offering of the Offered Securities will be
governed by the Terms Agreement, as supplemented hereby
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<PAGE> 6
(collectively, this "Agreement"), and this Agreement shall inure to the benefit
of and be binding upon each Underwriter participating in the offering of the
Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-91719) for the registration of the Securities and the Underlying Securities,
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and has prepared and filed such amendments thereto as required to the date
hereof. Such registration statement, as amended, has been declared effective by
the Commission, and each Indenture has been qualified under the Trust Indenture
Act of 1939 (the "1939 Act"). Such registration statement, as amended at the
date of the Terms Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement". Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Offered Securities, the terms
of the offering thereof and the other matters set forth therein has been
prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such
prospectus supplement, in the form first filed after the date of the Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". The basic prospectus included in the Registration Statement
relating to all offerings of Securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the "Prospectus",
except that, if such basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant to Rule 424,
the term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement or, if any revised
prospectus shall be provided to the Underwriters by the Company for their use in
connection with the offering of the Offered Securities which differs from such
basic prospectus and Prospectus Supplement (whether or not required to be filed
by the Company pursuant to Rule 424), the term "Prospectus" shall refer to such
revised prospectus (including any prospectus supplement) from and after the time
it is first provided to the Underwriters for such use, in either case including
the documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus, or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
similar references) shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is
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<PAGE> 7
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter named in the Terms Agreement as of
the date thereof and as of the Closing Time referred to in Section 2(c) hereof,
and as of each Date of Delivery, if any, referred to in Section 2(b) hereof (in
each case, a "Representation Date"), as follows:
(a) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with. Each Indenture has been duly qualified under
the 1939 Act.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on
Form 10-K with the Commission) became effective and at each
Representation Date, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the Commission under the 1939 Act (the "1939
Act Regulations"), and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any amendments or supplements
thereto were issued and at each Representative Date, included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
4
<PAGE> 8
(b) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), as
applicable, and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at each Representation Date, did
not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(d) Financial Statements. The financial statements and any
supporting schedules of the Company and its subsidiaries (and of any
other entity) included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and
its subsidiaries (or such other entity) as of the dates indicated and
the consolidated results of their operations for the periods specified;
except as stated therein, said financial statements have been prepared
in conformity with U.S. generally accepted accounting principles
applied on a consistent basis; the supporting schedules included in the
Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the pro forma financial
statements and the related notes thereto, if any, included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(e) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement, any Rule 462(b) Registration Statement and the Prospectus,
except as otherwise stated therein or contemplated thereby, (i) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (ii) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (iii)
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(f) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties
5
<PAGE> 9
and to conduct its business as described in the Prospectus, to enter
into and perform its obligations under this Agreement and to consummate
the transactions contemplated in the Prospectus; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(g) Good Standing of Subsidiaries. (1) Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries") has been duly organized 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 to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Prospectus, all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Significant Subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder of such Significant Subsidiary.
(h) Capitalization. If applicable, the authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus).
The shares of issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(i) Authorization, etc. of Agreements. This Agreement and the
applicable Delayed Delivery Contracts (as defined below), if any, have
been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Underwriters, will be valid and legally
binding agreements of the Company.
(j) Authorization of Common Stock. If the Offered Securities
include Common Stock, such Offered Securities have been, or as of the
date of the applicable Terms
- ---------------
(1) If the Offered Securities are Secured Senior Debt Securities, the
representations in this paragraph will cover each Significant Subsidiary
and all other subsidiaries subject to the lien created by the Pledge
Agreement (the "Pledged Subsidiaries").
6
<PAGE> 10
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Agreement. Such Offered Securities, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration therefor specified in this Agreement, will
be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of
the Company. No holder of such Offered Securities is or will be subject
to personal liability solely by reason of being such a holder.
(k) Authorization of Preferred Stock and/or Depositary Shares.
If the Offered Securities include Preferred Stock and/or Depositary
Shares, such Offered Securities have been, or as of the date of the
applicable Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Agreement. The
applicable Preferred Stock, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration
therefor, or for the related Depositary Shares, as the case may be,
specified in the applicable Terms Agreement, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. In addition,
upon deposit by the Company of any Preferred Stock represented by
Depositary Shares with the applicable Depositary and the execution and
delivery by such Depositary of the Depositary Receipts evidencing such
Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, such Depositary Shares will represent legal and valid
interests in such Preferred Stock. No holder of such Preferred Stock or
Depositary Receipts evidencing Depositary Shares is or will be subject
to personal liability solely by reason of being such a holder. The
applicable Certificate of Designations, Preferences and Rights will be
in full force and effect prior to the Closing Time.
(l) Authorization of Deposit Agreement. If the Offered
Securities include Depositary Shares or if Debt Securities are
convertible into Depositary Shares representing Preferred Stock, the
applicable Deposit Agreement has been, or prior to the issuance of such
Depositary Stock will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, and assuming due authorization, execution and delivery by the
applicable Depositary of the applicable Deposit Agreement, will
constitute 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 (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law). Each registered holder of a Depositary Receipt under
the applicable Deposit Agreement will be entitled to the proportional
rights, preferences and limitations of the Preferred Stock represented
by the Depositary Shares evidenced by such Depositary Receipt and to
such other rights as are granted to such registered holder in such
Deposit Agreement.
(m) Authorization and Enforceability of the Indenture. If the
Offered Securities include Senior Debt Securities and/or Subordinated
Debt Securities, or if Preferred Stock is, or Depositary Shares
representing Preferred Stock are, convertible into Debt
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<PAGE> 11
Securities, each applicable Indenture has been, or prior to the
issuance of the Debt Securities thereunder will have been duly
authorized, executed and delivered by the Company and, assuming due
execution and delivery by the applicable Trustee, will be a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting enforcement of creditors' rights generally or by
general equity principles, and except further as enforcement thereof
may be limited by (i) requirements that a claim with respect to any
Debt Securities denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority to
limit, delay or prohibit the making of payments outside the United
States.
(n) Authorization and Enforceability of the Security
Documents. If the Offered Securities include Secured Senior Debt
Securities, or if Preferred Stock is, or Depositary Shares representing
Preferred Stock are, convertible into Secured Senior Debt Securities,
each of the Security Documents has been, or prior to the issuance of
the Offered Securities will have been, duly authorized, executed and
delivered by the Company and, assuming due execution and delivery by
the other parties thereto, will be a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles; and the Pledge Agreement, together with delivery of
the certificates evidencing the shares of stock of the Pledged
Subsidiaries pledged thereunder (the "Pledged Shares") and stock powers
executed by the Company in blank to the Collateral Agent, will create a
perfected security interest in the Pledged Shares in favor of such
Collateral Agent for the benefit of the holders of the Secured Senior
Debt Securities and the other persons specified in the Pledge
Agreement, free of any adverse claims.
(o) Authorization and Enforceability of Senior Debt Securities
and/or Subordinated Debt Securities, etc. If the Offered Securities
include Senior Debt Securities and/or Subordinated Debt Securities,
such Offered Securities have been, or as of the date of the applicable
Terms Agreement will have been, duly and validly authorized for
issuance, offer and sale pursuant to this Agreement and each Delayed
Delivery Contract, if any, and when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the applicable
Indenture against payment of the consideration therefor, the Offered
Securities will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles, and except further as enforcement thereof may be
limited by (i) requirements that a claim with respect to any Offered
Securities denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority
8
<PAGE> 12
to limit, delay or prohibit the making of payments outside the United
States. Each Holder (as defined in the applicable Indenture) of Offered
Securities will be entitled to the benefits of such Indenture.
(p) Authorization of Warrants. If the Offered Securities
include Warrants, such Offered Securities have been, or as of the date
of the applicable Terms Agreement will have been, duly authorized by
the Company for issuance and sale pursuant to this Agreement. Such
Offered Securities, when issued and authenticated in the manner
provided for the applicable Warrant Agreement and delivered against
payment of the consideration therefor specified in the applicable Terms
Agreement, will constitute valid and binding obligations of the
Company, entitled to the benefits provided by such Warrant Agreement
and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(q) Authorization of Warrant Agreement. If the Offered
Securities include Warrants, each applicable Warrant Agreement has
been, or prior to the issuance of such Offered Securities will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, and assuming due
authorization, execution and delivery by the applicable Warrant Agent
of the applicable Warrant Agreement, will constitute 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 (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(r) Authorization of Underlying Securities. If the Underlying
Securities related to the Offered Securities include Common Stock,
Preferred Stock or Depositary Shares, such Underlying Securities have
been, or as of the date of the applicable Terms Agreement will have
been, duly authorized and reserved for issuance by the Company upon
exercise of the Common Stock Warrants or Preferred Stock Warrants, as
applicable, or upon conversion of the related Preferred Stock,
Depositary Shares, Senior Debt Securities or Subordinated Debt
Securities, as applicable. If the Underlying Securities include Common
Stock or Preferred Stock, such Underlying Securities, when issued upon
such exercise or conversion, as applicable, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. If the
Underlying Securities include Depositary Shares, such Underlying
Securities, upon deposit by the Company of the Preferred Stock
represented thereby with the applicable Depositary and the execution
and delivery by such Depositary of the Depositary Receipts evidencing
such Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, will represent legal and valid interests in such Preferred
Stock. No holder of such Common Stock, Preferred Stock or Depositary
Receipts evidencing Depository Shares is or will be subject to personal
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<PAGE> 13
liability solely by reason of being such a holder. If the Underlying
Securities related to the Offered Securities include Senior Debt
Securities and/or Subordinated Debt Securities, such Underlying
Securities have been, or as of the date of the applicable Terms
Agreement will have been, duly authorized for issuance by the Company
upon the exercise of the Debt Security Warrants or upon conversion of
the related Preferred Stock or Depositary Shares, as applicable. Such
Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance
with the terms of the Debt Security Warrants or the related Preferred
Stock or Depositary Shares, as applicable, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements
that a claim with respect to any Debt Securities payable in a foreign
or composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the making of
payments outside the United States.
(s) Descriptions of the Offered Securities, Underlying
Securities, Indentures, Deposit Agreement and Warrant Agreement. The
Offered Securities and each applicable Indenture, Security Document,
Deposit Agreement and Warrant Agreement, as of each Representation
Date, and any Underlying Securities, when issued and delivered in
accordance with the terms of the related Offered Securities, will
conform in all material respects to the statements relating thereto
contained in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(t) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, each Delayed Delivery
Contract, if any, each applicable Indenture, Security Document, Warrant
Agreement and Deposit Agreement, the Offered Securities and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
in the Prospectus and the consummation of the transactions contemplated
herein and therein (including the issuance and sale of the Offered
Securities and the use of the proceeds therefrom as described in the
Prospectus under the caption "Use of Proceeds" and the issuance of any
Underlying Securities) and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
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<PAGE> 14
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(u) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Offered Securities under this Agreement and any applicable
Indenture, Security Document, Warrant Agreement or Deposit Agreement,
or the consummation of the transactions contemplated by this Agreement
and any applicable Indenture, Security Document, Warrant Agreement or
Deposit Agreement, except such as have been already obtained or as may
be required under the 1933 Act or the 1933 Act Regulations and foreign
or state securities or blue sky laws.
(v) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any or its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, manufacturers, customers
or contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(w) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought 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 subsidiary, which is required to be disclosed in the
Registration Statement and the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to affect the
properties or assets thereof in a manner which would result in a
Material Adverse Effect or which might reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated in this Agreement any applicable Indenture, Security
Document, Warrant Agreement or Deposit Agreement or the performance by
the Company of its obligations under this Agreement, any applicable
Indenture, Security Document, Warrant Agreement or Deposit Agreement or
the Offered Securities; the aggregate of all pending legal or
governmental proceedings
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to which the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(x) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(y) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(z) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(aa) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (i) are described in the Prospectus or (ii) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries
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<PAGE> 16
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease that
would reasonably be expected to have a Material Adverse Effect.
(bb) Investment Company Act. The Company is not, and upon the
issuance and sale of the Offered Securities as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(cc) Environmental Laws. Except as described in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (i)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (ii) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(iii) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (iv) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(dd) Absence of Year 2000 Problem. The Company has reviewed
its operations and that of its subsidiaries and any third parties with
which the Company or any of its subsidiaries has a material
relationship to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries was affected by the Year 2000
Problem. As a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem has or will
have a Material Adverse Effect. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in
the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or
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electrical systems of any kind will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
Any certificate signed by any director or officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company as to the matters covered
thereby.
SECTION 2. Purchase and Sale.
(a) Initial Securities. The several commitments of the
Underwriters to purchase the Offered Securities pursuant to this
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to
the terms and conditions herein and therein set forth. Offered
Securities which are subject to Delayed Delivery Contracts are herein
sometimes referred to as "Delayed Delivery Offered Securities" and
Offered Securities which are not subject to Delayed Delivery Contracts
are herein sometimes referred to as "Immediate Delivery Offered
Securities".
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company may grant, if so
provided in the Terms Agreement, an option to the Underwriters named in
the Terms Agreement, severally and not jointly, to purchase up to the
number or principal amount of Option Securities set forth therein at
the same price per security (plus, except as otherwise provided in the
Terms Agreement, interest, if any, accrued and unpaid from the Closing
Time until the applicable Date of Delivery, and less, except as
otherwise provided in the Terms Agreement, an amount equal to any
dividends or distributions declared by the Company and paid or payable
on the initial Offered Securities but not payable on the Option
Securities), as is applicable to the Offered Securities. Such option,
if granted, will expire 30 days after the date of the Terms Agreement,
and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Offered Securities upon
notice by the Representatives to the Company setting forth the number
or principal amount of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days
and not earlier than two full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter
defined, unless otherwise agreed upon by the Representatives and the
Company. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase the proportion of the total number or principal
amount of Option Securities then being purchased that the number or
principal amount of Immediate Delivery Offered Securities each such
Underwriter has agreed to purchase, as set forth in the Terms
Agreement, bears to the total principal amount of Immediate Delivery
Offered Securities, subject to such adjustments as the Representatives
in their discretion shall make to eliminate any sales or purchases in
less than authorized denominations or of a fractional number of shares,
as the case may be.
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<PAGE> 18
(c) Payment, Denominations and Registration. Payment of the
purchase price for, and delivery of, the Immediate Delivery Offered
Securities to be purchased by the Underwriters shall be made at the
place set forth in the Terms Agreement, or at such other place as shall
be agreed upon by the Representatives and the Company, on the third
business day (unless postponed in accordance with the provisions of
Section 10) following the date of the Terms Agreement or such other
time as shall be agreed upon by the Underwriters and the Company (such
time and date being referred to as the "Closing Time"). Except as
specified in the Terms Agreement, payment shall be made to the Company
by wire transfer in same day funds to the account of the Company
specified in the Terms Agreement against delivery to the Underwriters
for the respective accounts of the Underwriters of the Immediate
Delivery Offered Securities to be purchased by them (unless the Offered
Securities are issuable only in the form of one or more global
securities registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global
securities shall be noted in a manner satisfactory to the Underwriters
and their counsel). In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates representing, such
Option Securities shall be made at such place as shall be agreed upon
by the Representatives and the Company, on each Date of Delivery as
agreed by the Representatives and the Company. The Immediate Delivery
Offered Securities shall be in such denominations and registered in
such names as the Underwriters may request in writing at least two
business days prior to the Closing Time or relevant Date of Delivery,
as the case may be. The Immediate Delivery Offered Securities, which if
agreed by the Representatives may be in temporary form, will be made
available for examination and packaging by the Representatives on or
before the first business day prior to the Closing Time or relevant
Date of Delivery, as the case may be.
(d) Delayed Delivery Contracts.
(i) If authorized by the Terms Agreement, the
Underwriters named therein may solicit offers to purchase
Offered Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto, with such
changes therein as the Company may approve. As compensation
for arranging Delayed Delivery Contracts, the Company will pay
to the Representatives at the Closing Time, for the account of
the Underwriters, a fee equal to that percentage of the
aggregate number or principal amount of Delayed Delivery
Offered Securities for which Delayed Delivery Contracts are
made at the Closing Time as is specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types set forth in the
Prospectus Supplement. At the Closing Time the Company will
enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Delayed Delivery Offered
Securities per Delayed Delivery Contract specified in the
Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as
provided below, but not for an aggregate number or principal
amount of Offered Securities in excess of that specified in
the Terms Agreement. The Underwriters
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<PAGE> 19
will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
(ii) The Representatives are to submit to the Company, at
least two business days prior to the Closing Time, the names
of any institutional investors with which it is proposed that
the Company will enter into Delayed Delivery Contracts and the
principal amount of Delayed Delivery Offered Securities to be
purchased by each of them, and the names of the institutions
with which the making of Delayed Delivery Contracts is
approved by the Company and the principal amount of Delayed
Delivery Offered Securities to be covered by each such Delayed
Delivery Contract.
(iii) The number or principal amount of Offered Securities
agreed to be purchased by the respective Underwriters pursuant
to this Agreement shall be reduced by the number or principal
amount of Delayed Delivery Offered Securities covered by
Delayed Delivery Contracts, as to each Underwriter as set
forth in a written notice delivered by the Underwriters to the
Company; provided, however, that the total number or principal
amount of Immediate Delivery Offered Securities to be
purchased by all Underwriters shall be the total amount of the
Offered Securities covered by this Agreement, less the total
number or principal amount of Delayed Delivery Offered
Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Preparation of Prospectus Supplement. Immediately
following the execution of the Terms Agreement, the Company will
prepare a Prospectus Supplement in form approved by the Representatives
setting forth the principal amount of Offered Securities and their
terms not otherwise specified in the Indenture, if applicable, the
names of the Underwriters and the number or principal amount of the
Offered Securities which each severally has agreed to purchase, the
names of the Underwriters, the price at which the Offered Securities
are to be purchased by the Underwriters from the Company, the initial
public offering price, the selling concession and reallowance, if any,
any delayed delivery arrangements, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus
(including the Prospectus Supplement) as the Representatives shall
reasonably request.
(b) Continued Compliance With Securities Laws. If at any time
when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities any event shall occur
or condition exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or counsel for the Company, to amend or
supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state any material
fact necessary in order to
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make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such
counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly amend the
Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and the Prospectus comply with such
requirements.
(c) Rule 158. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering each twelve month period beginning, in each case,
not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Securities.
(d) Filing of Additional Registration Statements or
Amendments. While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company will give the Representatives notice of its intention to file
any additional registration statement with respect to the registration
of additional Debt Securities, any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment or
supplement to the Prospectus, whether pursuant to the 1934 Act, the
1933 Act or otherwise; will furnish the Underwriters with copies of any
such amendment or supplement or other documents proposed to be filed a
reasonable time in advance of such proposed filing or use, as the case
may be; and will not file any such amendment or supplement or other
documents in a form to which the Representatives or counsel to the
Underwriters reasonably object.
(e) Compliance with Commission Requests and Notification of
Ratings Changes. While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company will notify the Representatives immediately, and promptly
confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be
incorporated by reference into the Registration Statement or the
Prospectus, (iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement, (iv) any request by the Commission for any amendment to the
Registration Statement, or any amendment or supplement to the
Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose and (vi) any change in the rating assigned by any nationally
recognized statistical rating organization to any debt securities of
the Company or the public announcement by any nationally recognized
statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of any debt
securities of the Company. The Company will make
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<PAGE> 21
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) Delivery of Registration Statements and Prospectuses. The
Company will deliver to each Underwriter one conformed copy of the
Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the
Prospectus) and will also deliver to the Representatives as many
conformed copies of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) as the Representatives may
reasonably request. While the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the
Company will furnish to the Representatives as many copies of the
Prospectus (including the Prospectus Supplement) as the Representatives
reasonably request.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Offered Securities
and any related Underlying Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Underwriters may designate, and will maintain
such qualifications in effect for as long as may be required for the
distribution of the Offered Securities; provided, however, that the
Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in
which the Offered Securities and any related Underlying Securities have
been qualified as above provided. The Company will promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered
Securities and any related Underlying Securities for sale in any such
state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) Compliance with 1934 Act. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Offered Securities, will
file all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(i) Restriction on Offers and Sales of Securities. If
specified in the Terms Agreement, between the date of the Terms
Agreement and the completion of the distribution of the Offered
Securities or the Closing Time, whichever is later, or such other time
as is specified in the Terms Agreement, the Company will not, without
the prior written consent of the Representatives, offer or sell, grant
any option for the sale of, or enter into any agreement to sell, any
securities of the Company substantially similar to the Offered
Securities (other than the Offered Securities that are to be sold
pursuant to such agreement or commercial paper in the ordinary course
of business or as otherwise specified in the Terms Agreement).
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(j) Reservation of Securities. If the applicable Terms
Agreement specifies that any related Underlying Securities include
Common Stock, Preferred Stock and/or Depositary Shares, the Company
will reserve and keep available at all times, free of preemptive or
other similar rights, a sufficient number of shares of Common Stock
and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities
upon exercise of the related Warrants, as applicable, or upon
conversion of the Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities, as applicable.
(k) Listing. The Company will use its best efforts to effect
the listing of the Offered Securities and any related Underlying
Securities, prior to the Closing Time, on any national securities
exchange or quotation system if and as specified in the applicable
Terms Agreement.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements which the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder and under the Terms Agreement, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and, at the Closing Time, no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel
to the Underwriters.
(b) Opinions of Counsel. At the Closing Time, the Underwriters
shall have received:
(i) Opinion of Counsel for Company. The favorable
opinion, dated as of the Closing Time, of Holland & Knight LLP
("H&K"), counsel to the Company (or another law firm with
respect to a Significant Subsidiary located in the United
States and organized in a jurisdiction in which H&K does not
provide such opinion), in form and substance satisfactory to
counsel for the Underwriters, to the effect as set forth below
and to such further effect as counsel for the Underwriters may
reasonably request:
(1) The Company is a corporation incorporated
and validly existing as a corporation in good standing under
the laws of the State of Delaware.
(2) The Company has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus
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and to enter into and perform its obligations under this
Agreement and the Delayed Delivery Contracts, if any.
(3) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify or to be in good standing would not result in a
Material Adverse Effect.
(4) If applicable, the authorized, issued and
outstanding capital stock of the Company is as set forth in
the Prospectus under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations,
agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus); the
shares of issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and
non-assessable; to such counsel's knowledge, none of the
outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(5) This Agreement and the applicable Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(6) If the Offered Securities include Common
Stock, such Offered Securities have been, or as of the date of
the applicable Terms Agreement will have been, duly authorized
by the Company for issuance and sale pursuant to this
Agreement. Such Offered Securities, when issued and delivered
by the Company pursuant to this Agreement against payment of
the consideration therefor specified in this Agreement, will
be validly issued, fully paid and non-assessable and will not
be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of such Offered
Securities is or will be subject to personal liability solely
by reason of being such a holder. The form of certificate used
to evidence the Offered Securities is in due and proper form
and complies with all applicable statutory requirements, with
any applicable requirements of the Company's charter and
by-laws and with the requirements of the New York Stock
Exchange.
(7) If the Offered Securities include Preferred
Stock and/or Depositary Shares, such Offered Securities have
been, or as of the date of the applicable Terms Agreement will
have been, duly authorized by the Company for issuance and
sale pursuant to this Agreement. The applicable Preferred
Stock, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration therefor,
or for the related Depositary Shares, as the case may be,
specified in the applicable Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights of any securityholder of
the Company. In addition, upon deposit by the Company of any
Preferred Stock represented by Depositary Shares with the
applicable
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Depositary and the execution and delivery by such Depositary
of the Depositary Receipts evidencing such Depositary Shares,
in each case pursuant to the applicable Deposit Agreement,
such Depositary Shares will represent legal and valid
interests in such Preferred Stock. No holder of such Preferred
Stock or Depositary Receipts evidencing Depositary Shares is
or will be subject to personal liability solely by reason of
being such a holder. The applicable Certificate of
Designations, Preferences and Rights will be in full force and
effect prior to the Closing Time. The form of certificate used
to evidence the Preferred Stock is in due and proper form and
complies with all applicable statutory requirements, with any
applicable requirements of the Company's charter and by-laws
and with the requirements of the exchange or system, if any,
on which the Offered Securities are listed or admitted for
trading, as the case may be.
(8) If the Offered Securities include Depositary
Shares or if Debt Securities are convertible into Depositary
Shares representing Preferred Stock, the applicable Deposit
Agreement has been, or prior to the issuance of such
Depositary Stock will have been, duly authorized, executed and
delivered by the Company and, upon such authorization,
execution and delivery, and assuming due authorization,
execution and delivery by the applicable Depositary of the
applicable Deposit Agreement, will constitute 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 (including,
without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at
law). Each registered holder of a Depositary Receipt under the
applicable Deposit Agreement will be entitled to the
proportional rights, preferences and limitations of the
Preferred Stock represented by the Depositary Shares evidenced
by such Depositary Receipt and to such other rights as are
granted to such registered holder in such Deposit Agreement.
(9) If the Offered Securities include Senior
Debt Securities and/or Subordinated Debt Securities, or if
Preferred Stock is, or Depositary Shares representing
Preferred Stock are convertible into Debt Securities, each
applicable Indenture has been, or prior to the issuance of the
Debt Securities thereunder will have been, duly authorized,
executed and delivered by the Company and (assuming each
applicable Indenture has been duly authorized, executed and
delivered by the applicable Trustee) constitutes a legal,
valid and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general
equity principles, and further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any
Offered Securities denominated other than in U.S. dollars (or
a foreign currency or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
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applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(10) If the Offered Securities include Secured
Senior Debt Securities, or if Preferred Stock is, or
Depositary Shares representing Preferred Stock are,
convertible into Secured Senior Debt Securities, each
applicable Security Document has been, or prior to the
issuance of the Secured Senior Debt Securities thereunder will
have been, duly authorized, executed and delivered by the
Company and (assuming each applicable Security Document has
been duly authorized, executed and delivered by the other
parties thereto) constitutes a legal, valid and binding
agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles;
and in the opinion of such counsel (or other appropriate
counsel if the opinion relates to a jurisdiction as to which
H&K does not provide such opinion) the Pledge Agreement,
together with delivery of the certificates evidencing the
Pledged Shares and stock powers executed by the Company in
blank to the Collateral Agent, will create a perfected
security interest in the Pledged Shares in favor of such
Collateral Agent for the benefit of the holders of the Secured
Senior Debt Securities and the other persons specified in the
Pledge Agreement, free of any adverse claims, subject to such
exceptions and qualifications as are set forth in the opinion
delivered to the holders of obligations secured equally and
ratably with the Secured Senior Debt Securities and reasonably
acceptable to the Company and the Underwriters.
(11) If the Offered Securities include Senior
Debt Securities and/or Subordinated Debt Securities, such
Offered Securities, have been or as at the date of the
applicable Terms Agreement will have been, duly authorized for
issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions
of this Agreement, any Delayed Delivery Contract and the
Indenture against payment of the consideration therefor, will
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally or by
general equity principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with
respect to any Offered Securities denominated other than in
U.S. dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the
United States; and each holder of Offered Securities will be
entitled to the benefits of such Indenture.
(12) If the Offered Securities include Warrants,
such Offered Securities have been, or as of the date of the
applicable Terms Agreement will have been,
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duly authorized by the Company for issuance and sale pursuant
to this Agreement. Such Offered Securities, when issued and
authenticated in the manner provided for the applicable
Warrant Agreement and delivered against payment of the
consideration therefor specified in the applicable Terms
Agreement, will constitute valid and binding obligations of
the Company, entitled to the benefits provided by such Warrant
Agreement and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(13) If the Offered Securities include Warrants,
each applicable Warrant Agreement has been, or prior to the
issuance of such Offered Securities will have been, duly
authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, and assuming due
authorization, execution and delivery of the applicable
Warrant Agent of the applicable Warrant Agreement, will
constitute 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 (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or
at law).
(14) If the Underlying Securities related to the
Offered Securities include Common Stock, Preferred Stock or
Depositary Shares, such Underlying Securities have been, or as
of the date of the applicable Terms Agreement will have been,
duly authorized and reserved for issuance by the Company upon
exercise of the Common Stock Warrants or Preferred Stock
Warrants, as applicable, or upon conversion of the related
Preferred Stock, Depositary Shares, Senior Debt Securities or
Subordinated Debt Securities, as applicable. If the Underlying
Securities include Common Stock or Preferred Stock, such
Underlying Securities, when issued upon such exercise or
conversion, as applicable, will be validly issued, fully paid
and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. If
the Underlying Securities include Depositary Shares, such
Underlying Securities, upon deposit by the Company of the
Preferred Stock represented thereby with the applicable
Depositary and the execution and delivery by such Depositary
of the Depositary Receipts evidencing such Depositary Shares,
in each case pursuant to the applicable Deposit Agreement,
will represent legal and valid interests in such Preferred
Stock. No holder of such Common Stock, Preferred Stock or
Depositary Receipts evidencing Depository Shares is or will be
subject to personal liability solely by reason of being such a
holder. If the Underlying Securities related to the Offered
Securities include Senior Debt Securities and/or Subordinated
Debt Securities, such Underlying Securities have
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<PAGE> 27
been, or as of the date of the applicable Terms Agreement will
have been, duly authorized for issuance by the Company upon
the exercise of the Debt Security Warrants or upon conversion
of the related Preferred Stock or Depositary Shares, as
applicable. Such Underlying Securities, when issued and
authenticated in the manner provided for in the applicable
Indenture and delivered in accordance with the terms of the
Debt Security Warrants or the related Preferred Stock or
Depositary Shares, as applicable, will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or
at law), and except further as enforcement thereof may be
limited by requirements that a claim with respect to any Debt
Securities payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(15) The Offered Securities and each applicable
Indenture, Security Document, Deposit Agreement and Warrant
Agreement, as of each Representation Date, and any Underlying
Securities, when issued and delivered in accordance with the
terms of the related Offered Securities, will conform in all
material respects to the statements relating thereto contained
in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement; and the statements in
the Prospectus under the captions "Description of Notes" and
"Description of Debt Securities", insofar as they purport to
summarize certain provisions of documents specifically
referred to therein, are accurate summaries of such
provisions.
(16) Each Significant Subsidiary(2) located in
the United States is a corporation incorporated and 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 Prospectus, and is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, except where the failure to so
qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding
capital stock of each Significant Subsidiary located in the
United States has been duly authorized and validly issued, is
fully paid and non-assessable, and to such counsel's
knowledge, is owned by the Company, directly or through
subsidiaries,
- -----------------
(2) If the Offered Securities are Secured Senior Debt Securities, the opinions
in this paragraph will cover each Significant Subsidiary and Pledged
Subsidiary located in the United States.
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<PAGE> 28
free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity (except as described in the
Prospectus); to such counsel's knowledge, none of the
outstanding shares of capital stock of any Significant
Subsidiary was issued in violation of the preemptive or
similar rights of any security holder of such Significant
Subsidiary.
(17) The Registration Statement, including any
Rule 462(b) Registration Statement, has been declared
effective under the 1933 Act; any required filing of the
Prospectuses pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b);
and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(18) The Registration Statement, including any
Rule 462(b) Registration Statement, or any information deemed
to be part of the Registration Statement pursuant to Rule
430A(b) or Rule 434 of the 1933 Act Regulations, as
applicable, the Prospectuses, excluding the documents
incorporated by reference therein, and each amendment or
supplement to the Registration Statement and the Prospectuses,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates (other than the
financial statements and supporting schedules included therein
or omitted therefrom and other than those parts of the
Registration Statement that constitute the Form T-1, as to
which such counsel need express no opinion) complied as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(19) The documents incorporated by reference in
the Prospectuses (other than the financial statements and
supporting schedules included therein or omitted therefrom,
as to which such counsel need express no opinion), when they
were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
(20) To such counsel's knowledge and except as
described in the Prospectus, there is not pending or
threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any subsidiary is a
party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this
Agreement, the Delayed Delivery Contracts, if applicable, or
any applicable Indenture, Warrant Agreement or Deposit
Agreement, or the performance by the Company of its
obligations hereunder or thereunder.
(21) The information in, or incorporated by
reference into, the Prospectus under the captions entitled
"Facilities", "Legal Proceedings", "Certain
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<PAGE> 29
Federal Income Tax Considerations" or any similar caption or
captions, if applicable, and in the Registration Statement
under Item 15, to the extent that it constitutes matters of
law, summaries of legal matters, the Company's charter and
bylaws or legal proceedings, or legal conclusions, has been
reviewed by such counsel and is correct in all material
respects; and, if applicable, the opinion of the firm set
forth under "Certain Federal Income Tax Considerations" or any
similar caption, if applicable, is confirmed.
(22) All descriptions in the Prospectus of
contracts and other documents to which the Company or its
subsidiaries are a party are accurate in all material
respects; to the best of such counsel's knowledge, there are
no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(23) To such counsel's knowledge, no filing
with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other
than under the 1933 Act and the 1933 Act Regulations, which
have been obtained, or as may be required under the securities
or blue sky laws of the various states, as to which such
counsel need express no opinion) is necessary or required in
connection with the due authorization, execution and delivery
of this Agreement, the Delayed Delivery Contracts, if
applicable, or any applicable Indenture, Security Document,
Warrant Agreement or Deposit Agreement or for the offering,
issuance, sale or delivery of the Offered Securities.
(24) The execution, delivery and performance of
this Agreement, any Delayed Delivery Contracts and each
applicable Indenture, Security Document, Warrant Agreement and
Deposit Agreement, and the consummation of the transactions
contemplated herein and therein and in the Registration
Statement (including the issuance and sale of the Offered
Securities, and the use of the proceeds from the sale of the
Offered Securities as described in the Prospectus under the
caption "Use Of Proceeds" and the issuance of any Underlying
Securities) and compliance by the Company with its obligations
hereunder and under any Delayed Delivery Contracts, the
Indenture and the Security Documents do not and will not,
whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default
or Repayment Event under or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant
to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or
instrument, known to such counsel, to which the Company or any
subsidiary 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 subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect),
nor will such
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<PAGE> 30
action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary, or any
applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of
their respective properties, assets or operations.
(25) The Company is not, and upon the issuance
and sale of the Offered Securities as contemplated in this
Agreement and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company,"
as such terms are defined in the 1940 Act.
(26) If the Offered Securities include Debt
Securities, the applicable Indenture has been duly qualified
under the 1939 Act.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion
shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
(ii) Opinion of Local Counsel for Company's Non-U.S.
Subsidiaries. The favorable opinion, dated as of Closing Time,
of each local counsel for the Company's non-U.S. Significant
Subsidiaries, in form and substance satisfactory to counsel
for the Underwriters as to each such subsidiary, to the effect
as set forth below and to such further effect as counsel for
the Underwriters may reasonably request:
(1) The subsidiary has been 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 to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(2) Except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding
capital stock of the subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to such
counsel's knowledge, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
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<PAGE> 31
(3) None of the outstanding shares of capital
stock of the subsidiary was issued in violation of the
preemptive or similar rights of any of its securityholders.
(4) To such counsel's knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the subsidiary is a party, or to which
the property of the subsidiary is subject, before or brought
by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated
in this Agreement.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion
shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
(iii) Opinion of Patent Counsel for the Company. The
favorable opinion, dated as of Closing Time, of Holland &
Knight LLP, patent counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the
effect as set forth below and to such further effect as
counsel for the Underwriters may reasonably request:
(1) Such counsel has read the information under
the caption "Business-Proprietary Rights" or any similar
caption included or incorporated by reference in the
Prospectus and has no reason to believe that the
aforementioned section of such Prospectus is inaccurate with
respect to the description set forth therein of any legal
matters, documents or proceedings or the patents, licenses,
trade secrets, trademarks, service marks and other proprietary
information and materials (collectively, "Intellectual
Property") owned or used by the Company.
(2) Except as set forth in the aforementioned
section of the Prospectus, to such counsel's knowledge, there
are no legal or governmental proceedings pending relating to
the Intellectual Property owned or used by the Company other
than the review of the pending patent application.
(3) Except as set forth in the aforementioned
section of the Prospectus, the Company (A) is not infringing
or otherwise violating any rights to Intellectual Property
owned by others and (B) is not subject to any current claim or
notice of infringement or other violation of any Intellectual
Property owned by others.
(4) Such counsel is familiar with the pending
patent applications filed by the Company (the "Applications")
and the Letters Patent issued to the Company (the "Patents")
and (A) to such counsel's knowledge, the Company is
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<PAGE> 32
the assignee of record of the Applications and the Patents and
(B) the Applications have been filed on behalf of the Company
with the U.S. Patent and Trademark Office (the "PTO") in
accordance with the rules and regulations of the PTO and the
Applications have been awarded a filing date by the PTO.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion
shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
(iv) Opinion of Counsel for Underwriters. The favorable
opinion, dated as of the Closing Time, of Brown & Wood LLP,
counsel for the Underwriters, with respect to the matters set
forth in clauses (1), (5) through (9), (11) through (15),
(17), (18) and (26) (in each case, as applicable), of
subsection (b)(i) of this Section.
(v) In giving their opinions required by subsection
(b)(i) and (b)(iv), respectively, of this Section 4, Holland &
Knight LLP and Brown & Wood LLP shall each additionally state
that in the course of the preparation of the Registration
Statement and the Prospectus such counsel has considered the
information set forth therein in light of the matters required
to be set forth therein, and has participated in conferences
with officers and representatives of the Company, including
its independent public accountants, during the course of which
the contents of the Registration Statement and the Prospectus
and related matters were discussed. Such counsel need not
independently check the accuracy or completeness of, or
otherwise verify, and accordingly need not pass upon, and
accordingly need not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as set forth
in items (15), (21), (22) and (26) of the opinion set forth in
subsection (b)(i)). Such counsel shall additionally state
that, however, as a result of such consideration and
participation, nothing has come to such counsel's attention
which causes such counsel to believe that the Registration
Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement,
then at the time such amendment became effective or at the
time of the most recent such filing, as the case may be),
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading or that the Prospectus or any amendment or
supplement thereto, at the time the Prospectus was issued at
the time any such amendment or supplement was issued, or at
the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
29
<PAGE> 33
misleading (it being understood that such counsel need express
no belief with respect to the financial statements and other
financial data contained in the Registration Statement
(including the Prospectus) or those parts of the Registration
Statement which constitute the Form T-1).
(c) Officer's Certificate. At the Closing Time, there shall
not have been, since the date of the Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change with respect to the Company and
its subsidiaries, (ii) the representations and warranties of the
Company contained in Section 1 are true and correct as of the Closing
Time, (iii) 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 date of such certificate and (iv) no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued and no proceedings for
that purpose have been initiated or threatened by the Commission. As
used in this Section 4(c), the term "Prospectus" means the Prospectus
in the form first provided to the applicable Underwriter or
Underwriters for use in confirming sales of the Offered Securities.
(d) Accountants' Comfort Letters.
(i) On the date of the Terms Agreement, the
Representatives shall have received a letter from KPMG LLP
(and each other independent accountants with respect to
financial statements included in the Registration Statement
and the Prospectus), dated as of the date thereof and in form
and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of
the other Underwriters, containing statements and information
of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(ii) At the Closing Time, the Underwriters shall have
received from KPMG LLP (and each other applicable independent
accountants), a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d)(i) of this Section,
except that the specified date referred to shall be a date not
more than three business days prior to the Closing Time.
(e) Approval of Listing. At Closing Time, the Offered
Securities shall have been approved for listing, subject only to
official notice of issuance, on the securities exchanges, if any,
specified in the applicable Terms Agreement.
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<PAGE> 34
(f) No Objection. If the Registration Statement or an offering
of Offered Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(g) Lock-up Agreements. On the date of the applicable Terms
Agreement, the Representatives shall have received, in form and
substance satisfactory to them, each lock-up agreement, if any,
specified in such Terms Agreement as being required to be delivered by
the persons listed therein.
(h) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Offered Securities as herein
contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Offered Securities as herein and in the Terms Agreement
contemplated shall be satisfactory in form and substance to the
Representatives.
(i) Conditions to Purchase of Option Securities. In the event
that the Terms Agreement provides for Option Securities and the
Underwriters exercise their option pursuant to Section 2(b) hereof to
purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall
be true and correct as of each Date of Delivery, and the Underwriters
shall have received:
(i) Unless the Date of Delivery is the Closing Time, a
certificate, dated such Date of Delivery, of the Chief
Executive Officer, President or a Vice President and the
Treasurer, the Assistant Treasurer, the principal financial
officer or principal accounting officer of the Company, in
their capacities as such, confirming that the certificate
delivered at the Closing Time pursuant to Section 4(c) hereof
remains true and correct as of such Date of Delivery.
(ii) The favorable opinion of Holland & Knight LLP,
counsel for the Company, each local counsel for the Company's
non-U.S. Significant Subsidiaries and Holland & Knight LLP,
patent counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinions required by
subsections (i), (ii) and (iii) of Section 4(b) hereof.
(iii) The favorable opinion of Brown & Wood LLP, counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the
opinion required by subsection (iv) to Section 4(b) hereof.
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<PAGE> 35
(iv) Unless the Date of Delivery is the Closing Time, a letter from
KPMG LLP (and each other applicable independent accountants), in form
and substance satisfactory to the Underwriters and dated such Date of
Delivery, substantially the same in scope and substance as the letter
furnished to the Underwriters at the Closing Time pursuant to Section
4(d) hereof, except that the "specified date" in the letter shall be a
date not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement,
including any Rule 462(b) Registration Statement, and all amendments
thereto and the Prospectus and any amendments or supplements thereto;
(b) the preparation, filing and reproduction of this Agreement
and the Delayed Delivery Contract(s), if applicable;
(c) the preparation, printing, issuance and delivery of the
Offered Securities and any related Underlying Securities, including any
fees and expenses relating to the eligibility and issuance of Offered
Securities and any related Underlying Securities in book-entry form;
(d) the fees and disbursements of the Company's accountants
and counsel, of each Trustee, any Warrant Agent and any Depositary and
their respective counsel, and of any calculation agent or exchange rate
agent;
(e) except as otherwise provided in the Terms Agreement, the
reasonable fees and disbursements of counsel to the Underwriters;
(f) the qualification of the Offered Securities and any
related Underlying Securities under state securities laws in accordance
with the provisions of Section 3(k) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of any
Blue Sky or Legal Investment Survey;
(g) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, and the delivery by the Underwriters
of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Offered
Securities;
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(h) the preparation, reproducing and delivery to the
Underwriters of copies of the applicable Indenture, any Warrant
Agreement or Deposit Agreement, as applicable, and all amendments,
supplements and modifications thereto;
(i) any fees charged by nationally recognized statistical
rating organizations for the rating of the Offered Securities and any
related Underlying Securities;
(j) the fees and expenses incurred in connection with any
listing of Offered Securities and any related Underlying Securities on
a securities exchange;
(k) the fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) any out-of-pocket expenses of the Underwriters incurred
with the approval of the Company; and
(m) the cost of providing any CUSIP or other identification
numbers for the Offered Securities and any related Underlying
Securities.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 9, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (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 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including any Rule 462(b)
Registration Statement, including information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) or Rule 434 of the 1933
Act Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) such settlement is effected with the
33
<PAGE> 37
written consent of the Company, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and expenses of counsel chosen by such
Underwriter), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (i) or (ii) above.
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); [and provided further that the Company will not be liable
to any Underwriter with respect to any preliminary prospectus to the extent that
the Company shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such Underwriter, in
contravention of a requirement of applicable law, sold Offered Securities to a
person to whom such Underwriter failed to send or give, at or prior to the
Closing Time, a copy of the Prospectus (or the Prospectus as amended or
supplemented) if (i) the Company has previously furnished copies thereof
(sufficiently in advance of the Closing Time and in sufficient quantity to allow
for distribution by the Closing Time) to the Underwriters and the loss,
liability, claim, damage or expense of such Underwriter resulted from an untrue
statement or omission of a material fact contained in or omitted from the
preliminary prospectus which was corrected in the Prospectus (or the Prospectus
as amended or supplemented) prior to the Closing Time and such Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person and (ii) such failure to give or send such Prospectus by the
Closing Time to the party or parties asserting such loss, liability, claim,
damage or expense would have constituted the sole defense to the claim asserted
by such person.]
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which
34
<PAGE> 38
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for the fees
and expenses of counsel which the indemnifying party is required to pay
pursuant to Section 6(a)(iii) and Section 6(b) hereof, such
indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party as required hereunder in accordance with such request
prior to the date of such settlement.
(e) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus,
or any amendment or supplement to any of the foregoing, shall be deemed
to include, without limitation, any electronically transmitted copies
thereof, including, without limitation, any copies filed with the
Commission pursuant to EDGAR.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect
35
<PAGE> 39
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total commission or underwriting discount
received by each Underwriter, in each case as set forth on the cover of the
Prospectus Supplement, bear to the aggregate initial public offering price of
the Offered Securities sold to or through such Underwriter as set forth on such
cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities sold to or through such Underwriter were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same
36
<PAGE> 40
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the principal
amount of Offered Securities sold to or through each Underwriter and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person of an Underwriter, or by or on behalf of the Company, and
shall survive each delivery of and payment for any Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement
immediately upon notice to the Company, at any time at or prior
to the Closing Time if (i) there has been, since the date of the
Terms 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, or in
the results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or
(ii) there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or
escalation of hostilities or other national or international
calamity or crisis the effect of which is such as to make it, in
the judgment of the Representatives, impracticable to market the
Offered Securities or enforce contracts for the sale of the
Offered Securities, or (iii) trading in any securities of the
Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have
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 shall have been declared by either Federal or New York
authorities or if a banking moratorium shall have been declared
by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Offered
Securities are denominated or payable, or (iv) the rating
assigned by any nationally recognized statistical rating
organization to any debt securities of the Company as of the date
of the Terms Agreement shall have been lowered since that date or
if any such rating organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company,
or (v) there shall have come to the attention of the
Representatives any facts that would cause them to reasonably
believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Offered Securities, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the
37
<PAGE> 41
statements therein, in light of the circumstances existing at the
time of such delivery, not misleading. As used in this Section 9,
the term "Prospectus" means the Prospectus in the form first
provided to the applicable Underwriter or Underwriters for use in
confirming sales of the related Offered Securities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party
to any other party, except to the extent provided in Section 5.
Notwithstanding any such termination, (i) the covenants set forth
in Section 3(b), (d), and (e) with respect to any offering of
Offered Securities shall remain in effect so long as any
Underwriter owns any such Offered Securities purchased from the
Company pursuant to this Agreement and during the period when the
Prospectus is required to be delivered in connection with sales
of the Offered Securities and (ii) the covenants set forth in
Section 3(c), (g), (h) and, if applicable, (i), the provisions of
Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7 and the provisions
of Sections 8, 11, 12 and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail at
the Closing Time or a Date of Delivery to purchase the Immediate Delivery
Offered Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, during such 24 hours the
Representatives shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed
10% of the amount of Immediate Delivery Offered Securities to be
purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the
number of Immediate Delivery Offered Securities to be purchased
on such date, this Agreement or, with respect to any Date of
Delivery which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall
38
<PAGE> 42
have the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the address
specified in this Section 11. Notices to the Underwriters shall be directed as
provided in the Terms Agreement. Notices to the Company shall be directed to it
at 10560 Ninth Street North, St. Petersburg, Florida 33716, attention of General
Counsel. Any party to this Agreement may from time to time designate another
address to receive notice pursuant to this Agreement by notice duly given in
accordance with the terms of this Section 11.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, 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 their 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 Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto 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.
SECTION 14. Counterparts. Any Terms Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts thereof shall constitute a single instrument.
39
<PAGE> 43
EXHIBIT A
TERMS AGREEMENT
___________ __, 19__
Jabil Circuit, Inc.
10800 Roosevelt Boulevard
St. Petersburg, Florida 33716
Attention:
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that Jabil
Circuit, Inc. (the "Company") proposes to issue and sell [____ shares of its
Common Stock, par value $0.001 per share (the "Common Stock")] [ shares of its
Preferred Stock, par value $0.001 per share (the "Preferred Stock")] [in the
form of depositary shares (the "Depositary Shares") each representing of
a share of Preferred Stock] [$ aggregate principal amount of its [senior]
[subordinated] debt securities (the "Debt Securities")] [ warrants (the
"Common Stock Warrants") to purchase Common Stock] [ warrants (the
"Preferred Stock Warrants") to purchase Preferred Stock] [ warrants (the
"Debt Security Warrants") to purchase $ aggregate principal amount of
[senior] [subordinated] debt securities] (the "Offered Securities"). Subject to
the terms and conditions set forth herein or incorporated by reference herein,
the Underwriters offer to purchase, severally and not jointly, the [number]
[principal amount] of Offered Securities set forth below opposite their
respective names at the purchase price set forth below [, and a proportionate
share of Option Securities set forth below, to the extent any are purchased].
<TABLE>
<CAPTION>
[Number]
[Principal Amount]
Underwriter of Offered Securities
-----------------------------------------------------------------
<S> <C>
----------------
Total [$]
</TABLE>
The Offered Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Securities:
Initial public offering price per share: $
Purchase price per share: $
A-1
<PAGE> 44
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion or exchange provisions:
Security provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of shares of Preferred Stock represented by each
Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
A-2
<PAGE> 45
Sinking fund requirements:
Conversion or exchange provisions:
Security provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from ___
Purchase price per share: $____ plus accumulated dividends, if any, from ___
Other terms and conditions:
Closing date and location:
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion or exchange provisions:
Security provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original
issue discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued
interest [amortized original issue discount], if any, from
_________________.
Form:
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Debt Security] Warrants
A-3
<PAGE> 46
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt Securities]: [Yes]
[No]
Number of [Common Stock] [Preferred Stock] [Debt Security] Warrants
issued with each [share of Common Stock] [share of Preferred Stock]
[$__________ principal amount of Debt Securities]:
Date(s) from which or period(s) during which [Common Stock] [Preferred Stock]
[Debt Security] Warrants are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Debt Security] Warrants
expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one [share of
Common Stock] [share of Preferred Stock] [Debt Security] Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Other terms, if any:
All the provisions contained in "Jabil Circuit--Underwriting Agreement
Basic Terms" (the "Basic Terms"), filed as an exhibit to the Registration
Statement relating to the Offered Securities and attached hereto as Annex A, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Any notice by the Company to the Underwriters pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to: [insert
A-4
<PAGE> 47
name and address of the lead manager or managers or, if only one underwriter is
a party hereto, of such firm] which shall, for all purposes of this Agreement,
be the "Representatives".
Very truly yours,
REPRESENTATIVE[S]
By:
--------------------------------------------
[Acting for themselves and as
Representative[s] of the Underwriters]
Accepted:
JABIL CIRCUIT, INC.
By:
---------------------------
Title:
A-5
<PAGE> 48
ANNEX A
[Jabil Circuit, Inc.--Underwriting Agreement Basic Terms]
A-6
<PAGE> 49
EXHIBIT B
JABIL CIRCUIT, INC.
[Title of Offered Securities]
DELAYED DELIVERY CONTRACT
Jabil Circuit, Inc.
10800 Roosevelt Boulevard
St. Petersburg, Florida 33716
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Jabil Circuit, Inc. (the
"Company"), and the Company agrees to sell to the undersigned on ____________,
19__ (the "Delivery Date"), $_____________ principal amount of the Company's __%
___________ due ___________ __, 19__ (the "Offered Securities"), offered by the
Company's Prospectus dated _________ __, 19__, as supplemented by its Prospectus
Supplement dated __________ __, 19__, receipt of which is hereby acknowledged,
at a purchase price of _____% of the principal amount thereof, plus accrued
interest from __________, ______, to the Delivery Date, and on the further terms
and conditions set forth in this contract.
Payment for the securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by wire transfer
in immediately available funds on the Delivery Date, upon delivery to the
undersigned of the Offered Securities to be purchased by the undersigned in
definitive or global form and in such denominations and registered in such names
as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than three full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Offered Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before ___________, ____, shall have sold to the Underwriters of the Offered
Securities (the "Underwriters") such principal amount of the Offered Securities
as is to be sold to them pursuant to the Terms Agreement dated ____________,
____ between the Company and the Underwriters. The obligation of the undersigned
to take delivery of and make payment for Offered Securities shall not be
affected by the failure of any purchaser to take delivery of and make payment
for Offered Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to the Underwriters that its investment in
the Offered
B-1
<PAGE> 50
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Offered Securities has
been taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Offered Securities in excess of
$__________ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first come first-served basis. If this contract is acceptable to the Company, it
is requested that the Company sign the form of acceptance on a copy hereof and
mail or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
B-2
<PAGE> 51
This Agreement shall be governed by the laws of the State New York
applicable to agreements made and performed in said State.
Yours very truly,
------------------------------
(Name of Purchaser)
By
-----------------------------
(Title)
------------------------------
------------------------------
(Address)
Accepted as of the date
first above written.
Jabil Circuit, Inc.
By:
---------------------------
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date shall be discussed is as
follows: (Please print.)
<TABLE>
<S> <C>
Telephone No.
Name (Including Area Code)
</TABLE>
B-3
<PAGE> 1
EXHIBIT 4.2
JABIL CIRCUIT, INC.,
Issuer
to
THE BANK OF NEW YORK,
Trustee
---------------
INDENTURE
---------------
Dated as of , 2000
Senior Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
ss.310(a)(1) ................................................................... 6.7
(a)(2) ........................................................................ 6.7
(b) ........................................................................... 6.8
ss.312(a) ...................................................................... 7.1
(b) ........................................................................... 7.2
(c) ........................................................................... 7.2
ss.313(a) ...................................................................... 7.3
(b)(2) ........................................................................ 7.3
(c) ........................................................................... 7.3
(d) ........................................................................... 7.3
ss.314(a) ...................................................................... 7.4
(b) ........................................................................... 16.4
(c)(1) ........................................................................ 1.2
(c)(2) ........................................................................ 1.2
(d) ........................................................................... 16.4
(e) ........................................................................... 1.2
(f) ........................................................................... 1.2
ss.316(a) (last sentence) ...................................................... 1.1
(a)(1)(A) ..................................................................... 5.2, 5.12
(a)(1)(B) ..................................................................... 5.13
(b) ........................................................................... 5.8
ss.317(a)(1) ................................................................... 5.3
(a)(2) ........................................................................ 5.4
(b) ........................................................................... 10.3
ss.318(a) ...................................................................... 1.8
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 are a part of and govern every qualified
indenture, whether or not physically contained herein.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................ 1
Section 1.1. Definitions........................................................................... 1
Section 1.2. Compliance Certificates and Opinions.................................................. 13
Section 1.3. Form of Documents Delivered to Trustee................................................ 13
Section 1.4. Acts of Holders....................................................................... 14
Section 1.5. Notices, etc., to Trustee and Company................................................. 16
Section 1.6. Notice to Holders of Securities; Waiver............................................... 16
Section 1.7. Language of Notices................................................................... 17
Section 1.8. Conflict with Trust Indenture Act..................................................... 17
Section 1.9. Effect of Headings and Table of Contents.............................................. 17
Section 1.10. Successors and Assigns................................................................ 17
Section 1.11. Separability Clause................................................................... 17
Section 1.12. Benefits of Indenture................................................................. 17
Section 1.13. Governing Law......................................................................... 18
Section 1.14. Business Day Convention............................................................... 18
Section 1.15. Counterparts.......................................................................... 18
Section 1.16. Judgment Currency..................................................................... 18
Section 1.17. Limitation on Individual Liability.................................................... 19
ARTICLE 2 SECURITIES FORMS....................................................................................... 19
Section 2.1. Forms Generally....................................................................... 19
Section 2.2. Form of Trustee's Certificate of Authentication....................................... 20
Section 2.3. Securities in Global Form............................................................. 20
ARTICLE 3 THE SECURITIES......................................................................................... 21
Section 3.1. Amount Unlimited; Issuable in Series.................................................. 21
Section 3.2. Currency; Denominations............................................................... 24
Section 3.3. Execution, Authentication, Delivery and Dating........................................ 25
Section 3.4. Temporary Securities.................................................................. 26
Section 3.5. Registration, Transfer and Exchange................................................... 27
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities...................................... 30
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved.................................................. 31
Section 3.8. Persons Deemed Owners................................................................. 33
Section 3.9. Cancellation.......................................................................... 34
Section 3.10. Computation of Interest............................................................... 34
Section 3.11. CUSIP Numbers......................................................................... 34
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 4 SATISFACTION AND DISCHARGE OF INDENTURE................................................................ 34
Section 4.1. Satisfaction and Discharge............................................................ 34
Section 4.2. Defeasance and Covenant Defeasance.................................................... 36
Section 4.3. Application of Trust Money............................................................ 39
ARTICLE 5 REMEDIES............................................................................................... 40
Section 5.1. Events of Default..................................................................... 40
Section 5.2. Acceleration of Maturity; Rescission and Annulment.................................... 41
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee....................... 42
Section 5.4. Trustee May File Proofs of Claim...................................................... 43
Section 5.5. Trustee May Enforce Claims without Possession of Securities or Coupons................ 44
Section 5.6. Application of Money Collected........................................................ 44
Section 5.7. Limitations on Suits.................................................................. 45
Section 5.8. Unconditional Right of Holders to Receive Principal and any Premium,
Interest and Additional Amounts....................................................... 45
Section 5.9. Restoration of Rights and Remedies.................................................... 46
Section 5.10. Rights and Remedies Cumulative........................................................ 46
Section 5.11. Delay or Omission Not Waiver.......................................................... 46
Section 5.12. Control by Holders of Securities...................................................... 46
Section 5.13. Waiver of Past Defaults............................................................... 47
Section 5.14. Waiver of Usury, Stay or Extension Laws............................................... 47
Section 5.15. Undertaking for Costs................................................................. 47
ARTICLE 6 THE TRUSTEE............................................................................................ 48
Section 6.1. Certain Rights of Trustee............................................................. 48
Section 6.2. Notice of Defaults.................................................................... 49
Section 6.3. Not Responsible for Recitals or Issuance of Securities................................ 50
Section 6.4. May Hold Securities................................................................... 50
Section 6.5. Money Held in Trust................................................................... 50
Section 6.6. Compensation and Reimbursement........................................................ 50
Section 6.7. Corporate Trustee Required; Eligibility............................................... 51
Section 6.8. Resignation and Removal; Appointment of Successor..................................... 52
Section 6.9. Acceptance of Appointment by Successor................................................ 53
Section 6.10. Merger, Conversion, Consolidation or Succession to Business........................... 54
Section 6.11. Appointment of Authenticating Agent................................................... 55
ARTICLE 7 HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY....................................................... 56
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders............................. 56
Section 7.2. Preservation of Information; Communications to Holders................................ 57
Section 7.3. Reports by Trustee.................................................................... 57
Section 7.4. Reports by Company.................................................................... 57
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE 8 CONSOLIDATION, MERGER AND SALES........................................................................ 58
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.................................. 58
Section 8.2. Successor Person Substituted for Company.............................................. 59
ARTICLE 9 SUPPLEMENTAL INDENTURES................................................................................ 59
Section 9.1. Supplemental Indentures without Consent of Holders.................................... 59
Section 9.2. Supplemental Indentures with Consent of Holders....................................... 61
Section 9.3. Execution of Supplemental Indentures.................................................. 62
Section 9.4. Effect of Supplemental Indentures..................................................... 62
Section 9.5. Reference in Securities to Supplemental Indentures.................................... 62
Section 9.6. Conformity with Trust Indenture Act................................................... 63
Section 9.7. Notice of Supplemental Indenture...................................................... 63
ARTICLE 10 COVENANTS............................................................................................. 63
Section 10.1. Payment of Principal, any Premium, Interest and Additional Amounts.................... 63
Section 10.2. Maintenance of Office or Agency....................................................... 63
Section 10.3. Money for Securities Payments to Be Held in Trust..................................... 64
Section 10.4. Additional Amounts.................................................................... 66
Section 10.5. Limitations upon Liens................................................................ 66
Section 10.6. Limitations upon Sales and Leasebacks................................................. 70
Section 10.7. Restrictions on Funded Debt of Restricted Subsidiaries................................ 71
Section 10.8. Corporate Existence................................................................... 72
Section 10.9. Waiver of Certain Covenants........................................................... 72
Section 10.10. Company Statement as to Compliance; Notice of Certain Defaults........................ 73
Section 10.11. Calculation of Original Issue Discount................................................ 73
ARTICLE 11 REDEMPTION OF SECURITIES.............................................................................. 73
Section 11.1. Applicability of Article.............................................................. 73
Section 11.2. Election to Redeem; Notice to Trustee................................................. 73
Section 11.3. Selection by Trustee of Securities to be Redeemed..................................... 74
Section 11.4. Notice of Redemption.................................................................. 74
Section 11.5. Deposit of Redemption Price........................................................... 76
Section 11.6. Securities Payable on Redemption Date................................................. 76
Section 11.7. Securities Redeemed in Part........................................................... 77
ARTICLE 12 SINKING FUNDS......................................................................................... 77
Section 12.1. Applicability of Article.............................................................. 77
Section 12.2. Satisfaction of Sinking Fund Payments with Securities................................. 77
Section 12.3. Redemption of Securities for Sinking Fund............................................. 78
</TABLE>
iii
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<TABLE>
<S> <C>
ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS.................................................................... 78
Section 13.1. Applicability of Article.............................................................. 78
ARTICLE 14 SECURITIES IN FOREIGN CURRENCIES...................................................................... 79
Section 14.1. Applicability of Article.............................................................. 79
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES..................................................................... 79
Section 15.1. Purposes for Which Meetings May Be Called............................................. 79
Section 15.2. Call, Notice and Place of Meetings.................................................... 79
Section 15.3. Persons Entitled to Vote at Meetings.................................................. 80
Section 15.4. Quorum; Action........................................................................ 80
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings................... 81
Section 15.6. Counting Votes and Recording Action of Meetings....................................... 82
ARTICLE 16 SECURITY.............................................................................................. 82
Section 16.1. Applicability of Article.............................................................. 82
Section 16.2. Collateral Documents.................................................................. 82
Section 16.3. Perfection and Opinions............................................................... 84
Section 16.4. Release of Collateral................................................................. 84
Section 16.5. Certificates of the Company and the Trustee........................................... 85
Section 16.6. Authorization of Actions to be taken by the Trustee under the Collateral
Documents............................................................................. 85
Section 16.7. Authorization of Receipt of Funds by the Trustee under the Collateral
Documents............................................................................. 86
Section 16.8. Disposition of Proceeds............................................................... 86
Section 16.9. Liens................................................................................. 87
Section 16.10. Security Interests.................................................................... 87
Section 16.11. Further Assurances.................................................................... 87
Section 16.12. Notices, etc., Relating to the Collateral Documents................................... 87
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of _____, 2000 (the "Indenture"), between JABIL
CIRCUIT, INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office located at 10560 Ninth Street North, St. Petersburg, Florida
33716, and The Bank of New York, a New York banking corporation (hereinafter
called the "Trustee"), having its Corporate Trust Office located at 101 Barclay
Street, Floor 21 West, New York, NY 10286.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit, subject to
Article 16, of all Holders of the Securities or of any series thereof and any
Coupons (as herein defined) as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article, either directly or by
reference to another Section hereof, have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein", "hereof", "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified in
Section 1.4.
"Additional Amounts" means any Additional Amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which 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 the meanings correlative to
the foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable for a term of more than 12 months, at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term
thereof (excluding any subsequent renewal or other extension options held by
the lessee), discounted from the respective due dates thereof to such date at
the interest rate inherent in such lease (such rate to be determined by any two
of the following: the President, any Vice President, the Treasurer and the
Controller of the Company), compounded annually. The net amount of rent
required to be paid under any such lease for any such period should be the
aggregate amount of the rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of maintenance and
repairs, services, insurance, taxes, assessments, water rates and similar
charges and contingent rents (such as those based on sales). In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such net
amount of rent should include the lesser of (i) the total discounted net amount
of rent required to be paid from the later of the first date upon which such
lease may be so terminated or the date of the determination of such amount of
rent, as the case may be, and (ii) the amount of such penalty (in which event
no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated).
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.11 to act on behalf of the Trustee to authenticate Securities of
one or more series.
2
<PAGE> 9
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not
published on Saturdays, Sundays or holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in
the place of publication.
"Authorized Officer" means, when used with respect to the Company, the
Chairman of the Board of Directors, a Vice Chairman, the President, any Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company.
"Bearer Security" means any Security in the form established pursuant to
Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, any day other than a Saturday, Sunday or other day on which
banking institutions in such Place of Payment or other location are authorized
or obligated by law, regulation or executive order to close.
"Capital Stock" means (i) with respect to any Person organized as a
Corporation, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interest in (however
designated) corporate stock, and (ii) with respect to any Person that is not
organized as a Corporation, the partnership, membership or other equity
interests or participations in such Person.
"Capitalized Lease Obligation" means an obligation of the lessee under any
lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP.
"Collateral" means the collateral from time to time securing the Company's
obligations under the Securities of each applicable series pursuant to Article
16.
"Collateral Agent" means Bank One, NA, or any successor thereto, as
Collateral Agent under the Collateral Documents.
"Collateral Documents" means, collectively, the Pledge Agreement, the
Intercreditor Agreement, and any other documents in addition thereto or in lieu
thereof which are entered into from time to time to provide that the Securities
of each applicable series secured pursuant to
3
<PAGE> 10
Article 16, will be secured equally and ratably with the Company's obligations
owing to the Lenders with a valid, perfected security interest in the
Collateral.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" includes any capital stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company.
"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, and any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by the Chairman
of the Board of Directors, a Vice Chairman, the President, Executive Vice
President, Senior Vice President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total of all assets reflected
on a consolidated balance sheet of the Company and its Consolidated
Subsidiaries, prepared in accordance with GAAP, at their net book values (after
deducting related depreciation, depletion, amortization and all other valuation
reserves which, in accordance with such principles, should be set aside in
connection with the business conducted), but excluding goodwill, unamortized
debt discount and all other like intangible assets, all as determined in
accordance with such principles, less the aggregate of the current liabilities
of the Company and its Consolidated Subsidiaries reflected on such balance
sheet, all as determined in accordance with such principles. For purposes of
this definition, "current liabilities" include all indebtedness for money
borrowed, incurred, issued, assumed or guaranteed by the Company and its
Consolidated Subsidiaries, and other payables and accruals, in each case
payable on demand or due within one year of the date of determination of
Consolidated Net Tangible Assets, but shall exclude any portion of long-term
debt maturing within one year of the date of such determination, all as
reflected on such consolidated balance sheet of the Company and its
Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Subsidiary" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the
4
<PAGE> 11
international banking community or (ii) any Currency unit or composite
Currency for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at 101 Barclay Street, Floor 21 West, New York, NY 10286.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Credit Facility" means the Amended and Restated Loan Agreement dated as of
April 7, 2000, among the Company, certain of its Subsidiaries, the banks named
therein and Bank One, N.A., as administrative agent, together with any
amendment, extension, renewal, substitution or replacement, or successive
amendment, extension, renewal, substitution or replacement thereof, and any
credit facility providing for substantially similar security for the lenders
party thereto, entered into by the Company within 180 days after any such
credit facility or any such amendment, extension, renewal, substitution or
replacement (or in each case the Liens granted thereunder) has been cancelled
or otherwise terminated.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required
to be made by or pursuant to the terms hereof or such Security and, with
respect to any other payment, deposit or transfer pursuant to or contemplated
by the terms hereof or such Security, means Dollars.
"Currency Agreement" means any foreign exchange contract, Currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
Currency values.
"CUSIP number" means the alphanumeric designation assigned to a Security by
Standard & Poor's Ratings Service, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any Currency, Currency unit or composite Currency,
including, without limitation, the euro, issued by the government of one or
more countries other than the United States of America or by any recognized
confederation or association of such governments.
5
<PAGE> 12
"Funded Debt" means indebtedness created, assumed or guaranteed by a Person
for money borrowed which matures by its terms, or is renewable by the borrower
to a date, more than a year after the date of original creation, assumption or
guarantee.
"GAAP" means generally accepted accounting principles in the United States
as in effect from time to time, applied on a basis consistent (except for
changes concurred in by the Company's independent public accountants) with the
most recent audited consolidated financial statements of the Company and its
Consolidated Subsidiaries.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or
any premium or interest on such Security or any Additional Amounts in respect
thereof shall be payable, in each case where the payment or payments thereunder
are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such other
government or governments, in each case where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government or governments, and
which, in the case of (i) or (ii), are not callable or redeemable at the option
of the issuer or issuers thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of or
other amount with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of or other amount with
respect to the Government Obligation evidenced by such depository receipt.
"Holder", in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness" means (a) any liability of the Company or any Subsidiary (1)
for borrowed money, or under any reimbursement obligation relating to a letter
of credit, or (2) evidenced by a bond, note, debenture or similar instrument,
or (3) for payment obligations arising under any conditional sale or other
title retention arrangement (including a purchase money obligation) given in
connection with the acquisition of any businesses, properties or assets of any
kind, or (4) consisting of the discounted rental stream properly classified in
accordance with GAAP on the balance sheet of the Company or any Subsidiary, as
lessee, as a Capitalized Lease Obligation, or (5) under Currency Agreements and
Interest Rate Agreements, to the extent not otherwise included in this
definition; (b) any liability of others of a type described in the preceding
clause (a) to the extent that the Company or any Subsidiary has guaranteed or
is otherwise legally obligated in respect thereof; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above. "Indebtedness"
shall not be construed to include (x) trade payables or credit on open account
to trade creditors incurred in the ordinary course of business or (y)
obligations or liabilities incurred in connection with the sale, transfer or
other disposition of property in connection with the securitization or other
6
<PAGE> 13
asset-based financing thereof; provided however that any such sale, transfer or
other disposition shall be for valid consideration and shall not be to prefer
directly or indirectly any holder of any other obligation or Indebtedness of
the Company or any Subsidiary of the Company as to any such other obligation or
Indebtedness that was already outstanding and did not previously benefit from a
Lien. Accrual of interest, accretion or amortization of original issue
discount, and the payment of interest in the form of additional Indebtedness
will not be deemed to be an incurrence of Indebtedness for purposes of Section
10.7.
"Indenture" means this instrument 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, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of accountants
that, with respect to the Company and any other obligor under the Securities or
the Coupons, are independent public accountants within the meaning of the
Securities Act, and the rules and regulations promulgated by the Commission
thereunder, who may be the independent public accountants regularly retained by
the Company or who may be other independent public accountants. Such
accountants or firm shall be entitled to rely upon any Opinion of Counsel as to
the interpretation of any legal matters relating to this Indenture or
certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity, and premium, if any,
interest, if any, or Additional Amounts thereon may be determined with
reference to an index, formula or other method or methods.
"Intercreditor Agreement" means one or more intercreditor agreements
or other similar agreements entered into from time to time to provide that the
Securities of each applicable series secured pursuant to Article 16 will be
secured equally and ratably with the Company's obligations owing to the Lenders
with a valid, perfected security interest in the Collateral.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such
Additional Amounts.
"Interest Payment Date", with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Judgment Currency" has the meaning specified in Section 1.16.
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"Lenders" means, collectively, the bank lenders party to the Credit
Facility from time to time and the holders from time to time of the Company's
outstanding 6.89% Senior Notes due May 30, 2004.
"Lien" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; provided that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated and any
asset which is so sold shall not be deemed subject to a Lien. Pursuant to the
indenture, a contractual grant of a right of set-off does not create a Lien in
the absence of an agreement to maintain a balance against which such right may
be exercised.
"Maturity", 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 provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for
such Securities pursuant to Section 10.2 or any other office or agency of the
Company maintained or designated for such Securities pursuant to Section 10.2
or, to the extent designated or required by Section 10.2 in lieu of such office
or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by (a) (i) the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
(ii) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, or (b) by any two of the officers listed in clause
(i) that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
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(b) any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 4.2) 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 reasonably satisfactory to the Trustee has
been made;
(c) any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except to
the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
unless there shall have been presented to the Trustee proof
reasonably satisfactory to it that such Security is held by a
bona fide purchaser in whose hands such Security is a valid
obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by
this Indenture into Common Stock of the Company or other
securities, if the terms of such Security provide for such
conversion or exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal
amount of an Original Issue Discount Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the
terms of such Original Issue Discount Security would be declared (or shall have
been declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purposes shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security, and (iv) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only
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Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee (A) the pledgee's right so to act with
respect to such Securities and (B) that the pledgee is not the Company or any
other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Pledge Agreement" means one or more pledge agreements or other
similar agreements entered into from time to time to provide that the
Securities of each applicable series secured pursuant to Article 16 will be
secured equally and ratably with the Company's obligations owing to the Lenders
with a valid, perfected security interest in the Collateral.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to
which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed
to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture or such Security as the "Regular
Record Date".
"Required Currency" has the meaning specified in Section 1.16.
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"Responsible Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means, at any time, each and every Subsidiary
at least 80% (by number of votes) of the Voting Stock of which is legally and
beneficially owned by the Company and its Wholly-Owned Restricted Subsidiaries
at such time.
"Sale and Leaseback Transaction" has the meaning specified in Section
10.6.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Securities Exchange Act" means the U.S. Securities Exchange Act of
1934, as amended.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto or any other Indebtedness, means the date established by or pursuant to
this Indenture or such Security or other Indebtedness as the fixed date on
which the principal of such Security or such installment of principal or
interest or other Indebtedness is, or such Additional Amounts are, due and
payable.
"Subsidiary" means any Corporation, association or other business
entity of which at the time of determination the Company or one or more
Subsidiaries owns or controls more than 50% of the shares of Voting Stock.
"Surety Obligations" means any bonds, including bid bonds, advance
bonds, or performance bonds, letters of credits, warranties, and similar
arrangements between the Company or any of its Restricted Subsidiaries and one
or more surety providers, for the benefit of the Company or any Restricted
Subsidiary's suppliers, vendors, insurers, or customers including, in each
case, any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as amended, modified,
renewed, refunded,
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replaced, restated or refinanced from time to time, and in each case exclusive
of obligations for the payment of borrowed money.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"Uniform Commercial Code" means the Uniform Commercial Code as from
time to time in effect in the State of New York.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign Corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign Corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act
and, if so provided with respect to any Security, any successor to such Person.
If at any time there is more than one such Person, "U.S. Depository" or
"Depository" shall mean, with respect to any Securities, the qualifying entity
which has been appointed with respect to such Securities.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "Vice President."
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, managers or trustees, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
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"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted Subsidiary 100% of all of the equity interests (except directors'
qualifying shares) and voting interests of which are owned by any one or more
of the Company and the Company's other Wholly-Owned Restricted Subsidiaries at
such time.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in 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, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents or any of them 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 individual signing such a certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3. 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 an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe, and does
not believe, that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such 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
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<PAGE> 20
to such factual matters is in the possession of the Company provided that such
counsel, after reasonable inquiry, has no reason to believe, and does not
believe, 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 or any Security, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to 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, but only if, Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
15, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or 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 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or
pursuant to this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository's standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization,
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<PAGE> 21
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or
proxies, and only such Persons, shall be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other
Act, whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other Act
shall be valid or effective if made, given or taken more than 90 days after
such record date.
(2) The fact and date of the execution by any Person of any
such instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement and
the date of the termination of holding the same, shall be proved by the
Security Register.
(4) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement and the
date of the termination 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 reasonably acceptable to the
Company, wherever situated, if such certificate shall be deemed by the Company
and the Trustee to be satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(a) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, (b) such Bearer Security is produced to
the Trustee by some other Person, (c) such Bearer Security is surrendered in
exchange for a Registered Security, or (d) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may at its option (but is not
obligated to), by Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at
the close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
of Registered Securities shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
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(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security 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 or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 1.5. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Treasurer at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage prepaid, to
each Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in The City
of New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier than
the earliest date and the second such publication not later than the latest
date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder 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. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. 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 by mail, then such
notification shall be made by overnight courier.
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In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice mailed
to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and any Authenticating Agent and their respective
successors hereunder and the Holders of Securities or Coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
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Section 1.13. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by
and construed in accordance with the laws of the State of New York applicable
to agreements made or instruments entered into and, in each case, performed in
said state.
Section 1.14. Business Day Convention.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or
exchangeable, shall be a day that is not a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture, any
Security or any Coupon other than a provision in any Security or Coupon that
specifically states that such provision shall apply in lieu hereof) payment
need not be made at such Place of Payment on such date, and such Securities
need not be converted or exchanged on such date but such payment may be made,
and such Securities may be converted or exchanged, on the next succeeding day
that is a Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or at the Stated Maturity or Maturity
or on such last day for conversion or exchange, and no interest shall accrue on
the amount payable on such date or at such time for the period from and after
such Interest Payment Date, Stated Maturity, or Maturity or last day for
conversion or exchange, as the case may be, to such next succeeding Business
Day.
Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal
of, or premium or interest, if any, or Additional Amounts 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 requisite amount of the Required Currency
with the Judgment Currency on the New York Banking Day preceding the day on
which a final unappealable judgment is given and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any judgment (whether
or not entered in accordance with clause (a)), in any Currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
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foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or
executive order to be closed.
Section 1.17. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and
the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, shareholders, officers or directors, as such, of the
Company, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any Security or implied therefrom; and that
any and all such personal liability of every name and nature, either at common
law or in equity or by constitution or statute, of, and any and all such rights
and claims against, every such incorporator, shareholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Security.
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the
form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
or pursuant to this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company
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executing such Securities or Coupons, as evidenced by their execution of such
Securities or Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
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.
THE BANK OF NEW YORK,
as Trustee
By
---------------------------------
Authorized Signatory
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in temporary or permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i)
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in the case of a global Security in registered form, the Holder of such global
Security in registered form, or (ii) in the case of a global Security in bearer
form, the Person or Persons specified pursuant to Section 3.1.
ARTICLE 3
THE SECURITIES
Section 3.1. 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.
With respect to any Securities to be authenticated and delivered
hereunder, 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,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such 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 such series pursuant to Section 3.4,
3.5, 3.6, 9.5 or 11.7, upon repayment in part of any Registered Security of
such series pursuant to Article 13, upon surrender in part of any Registered
Security for conversion into Common Stock of the Company or exchange for other
securities pursuant to its terms, or pursuant to or as contemplated by the
terms of such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities and
Registered Securities, and whether the Bearer Securities are to be issuable
with Coupons, without Coupons or both, and any restrictions applicable to the
offer, sale or delivery of the Bearer Securities and the terms, if any, upon
which Bearer Securities may be exchanged for Registered Securities and vice
versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent global form
or both, (ii) whether beneficial owners of interests in any such global
Security may exchange such interests for Securities of the same series and of
like tenor and of any authorized form and denomination, and the circumstances
under which any such exchanges may occur, if other than in the manner specified
in Section 3.5, and (iii) the name of the Depository or the U.S. Depository, as
the case may be, with respect to any such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer Security or
global Security shall be dated (if other than the date of original issuance of
the first of such Securities to be issued);
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(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary Bearer
Security in global form payable in respect of an Interest Payment Date therefor
prior to the exchange, if any, of such temporary Bearer Security for definitive
Securities shall be paid to any clearing organization with respect to the
portion of such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification requirements) upon
which any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest Payment
Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of and
premium, if any, on such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate or rates
are to be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to be
determined, the Interest Payment Dates, if any, on which such interest shall be
payable and the Regular Record Date, if any, for the interest payable on
Registered Securities on any Interest Payment Date, whether and under what
circumstances Additional Amounts on such Securities or any of them shall be
payable, the notice, if any, to Holders regarding the determination of interest
on a floating rate Security and the manner of giving such notice, and the basis
upon which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any premium
and interest on or any Additional Amounts with respect to such Securities shall
be payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such Securities
may be surrendered for conversion or exchange and notices or demands to or upon
the Company in respect of such Securities and this Indenture may be served, the
extent to which, or the manner in which, any interest payment or Additional
Amounts on a global Security on an Interest Payment Date, will be paid and the
manner in which any principal of or premium, if any, on any global Security
will be paid;
(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part, at
the option of the Company;
(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or analogous provision or
at the option of any Holder thereof and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple
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thereof, and the denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into shares of Common Stock of the Company and/or exchangeable for other
securities, whether or not issued by the Company, and, if so, the terms and
conditions upon which such Securities will be so convertible or exchangeable,
and any deletions from or modifications or additions to this Indenture to
permit or to facilitate the issuance of such convertible or exchangeable
Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or
the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be payable, at
the election of the Company or a Holder thereof or otherwise, in Dollars or in
a Foreign Currency other than that in which such Securities are stated to be
payable, the date or dates on which, the period or periods within which, and
the other terms and conditions upon which, such election may be made, and the
time and manner of determining the exchange rate between the Currency in which
such Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and any
deletions from or modifications of or additions to the terms of this Indenture
to provide for or to facilitate the issuance of Securities denominated or
payable, at the election of the Company or a Holder thereof or otherwise, in a
Foreign Currency;
(17) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or other
method or methods (which index, formula or method or methods may be based,
without limitation, on Dollars, one or more Foreign Currencies, commodities,
equity securities, equity indices or other indices), and, if so, the terms and
conditions upon which and the manner in which such amounts shall be determined
and paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of such
Securities, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, or any covenants in addition to
those specified in Section 4.2(3) relating to the Securities of such series
shall be subject to covenant defeasance, and any deletions from, or
modifications or additions to, the provisions of Article 4 in respect of the
Securities of such series;
(20) whether any of such Securities are to be issuable upon
the exercise of warrants, and the time, manner and place for such Securities to
be authenticated and delivered;
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(21) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then the
form and terms of such certificates, documents or conditions;
(22) whether the Securities of the series are to be secured by
a pledge of, or security interest in, any assets or property of the Company,
including Capital Stock, pursuant to Article 16 and if so, any deletions from,
substitution for or modifications or additions to (or any combination of the
foregoing), the provisions of Article 16 in respect of the Securities of such
series;
(23) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security Registrar,
Paying Agent or Authenticating Agent with respect to such Securities; and
(24) any other terms of such Securities and any other
deletions from or modifications or additions to this Indenture in respect of
such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations
of $1,000 and any integral multiple thereof, and the Bearer Securities
denominated in Dollars shall be issuable in the denomination of $5,000.
Securities not denominated in Dollars shall be issuable in
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such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested by
its Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the Treasurer or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
Securities and any 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 and Coupons or did not hold such offices at the
date of original issuance 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, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for
authentication and, provided that the Board Resolution and Officers'
Certificate or supplemental indenture or indentures with respect to such
Securities referred to in Section 3.1 and a Company Order for the
authentication and delivery of such Securities have been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver, or
make available for delivery, such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the
Trustee shall be entitled to receive, and (subject to Sections 315(a) through
315(d) of the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the provisions of
this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto, have
been complied with and that such Securities and Coupons, when completed by
appropriate insertions, executed under the Company's corporate seal and
attested by duly authorized officers of the Company, delivered by duly
authorized officers of the Company to the Trustee for authentication pursuant
to this Indenture, and 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 legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting creditors'
rights generally, and subject to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
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law) and will entitle the Holders thereof to the benefits of this Indenture;
such Opinion of Counsel need express no opinion as to the availability of
equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have been
complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officers' Certificate stating that all conditions precedent
to the execution, authentication and delivery of such Securities and Coupons,
if any, appertaining thereto, have been complied with and that, to the best
knowledge of the Persons executing such certificate, no event which is, or
after notice or lapse of time would become, an Event of Default with respect to
any of the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
that the Trustee authenticate and deliver Securities of such series for
original issue will be deemed to be a certification by the Company that all
conditions precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially
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of the tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized in or pursuant to this Indenture, in bearer
form with one or more Coupons 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 conclusively evidenced
by their execution of such Securities. Such temporary Securities may be in
global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared
without unreasonable delay. After the preparation of definitive Securities of
the same series and containing terms and provisions that are identical to those
of any temporary Securities, such temporary Securities shall be exchangeable
for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof.
Upon surrender for cancellation of any one or more temporary Securities
(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 authorized denominations of
the same series and containing identical terms and provisions; provided,
however, that no definitive Bearer Security, except as provided in or pursuant
to this Indenture, shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in or pursuant to this Indenture. Unless otherwise
provided in or pursuant to this Indenture with respect to a temporary global
Security, 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.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of
a like
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aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any Office or Agency for such series, 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 and the Trustee 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 Bearer Security
shall surrender to any Paying Agent any such missing Coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for
such series located outside the United States. Notwithstanding the foregoing,
in case a Bearer Security of any series is surrendered at any such Office or
Agency for such series in exchange for a Registered Security of such 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 next succeeding Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such Office or Agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with such
Bearer Security, such Coupon shall be returned to the Person so surrendering
the Bearer Security), and interest or Defaulted Interest, as the case may be,
shall 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 shall be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
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Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, 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 provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, 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 in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such global Security shall be
surrendered from time to time by the U.S. Depository or such other Depository
as shall be specified in the Company Order with respect thereto, and in
accordance with instructions given to the Trustee and the U.S. Depository or
such other Depository, as the case may be (which instructions shall be in
writing but need not be contained in or accompanied by an Officers' Certificate
or be accompanied by an Opinion of Counsel), 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
as described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
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 global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; 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 the same series to be
redeemed and ending on the relevant Redemption Date; and provided, further,
that (unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository 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 global Security after the close of
business at the Office or Agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date, or (ii) any Special Record Date for such Security and before the
opening of business at such Office or Agency on the related
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proposed date for payment of interest or Defaulted Interest, as the case may
be, interest shall 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 shall be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such global Security shall be 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 entitling the Holders thereof 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 or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security 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, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business 15
days before the day of mailing of any notice of redemption of Securities of
like tenor and the same series under Section 11.3 and ending at the close of
business on the day of such selection, (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed, (iii) to exchange any Bearer Security so selected
for redemption except, to the extent provided with respect to such Bearer
Security, that such Bearer Security may be exchanged for a Registered Security
of like tenor and the same series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
Section 3.6. 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, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
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If there be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
Coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, 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 containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
appertaining thereto corresponding to the Coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any 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 or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities
located outside the United States and, unless otherwise provided in or pursuant
to this Indenture, any interest on Bearer Securities and any Additional Amounts
with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 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 a separate obligation of the Company, whether or
not the destroyed, lost or stolen Security and Coupons appertaining thereto or
the destroyed, lost or stolen Coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
shall be exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in
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whose name such Security (or one or more Predecessor Securities) is registered
as of the close of business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
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 Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed by
the Company in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on such
Registered Security, the Special Record Date therefor 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 on or prior to the date of the proposed payment,
such money when so deposited to be held in trust for the benefit of the Person
entitled to such Defaulted Interest as in this clause provided. The Special
Record Date for the payment of such Defaulted Interest shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after notification to the Trustee of the proposed
payment. The Trustee shall in the name and at the expense of the Company cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the Holder
of such Registered Security (or a Predecessor Security thereof) at his address
as it appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee shall, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, 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 mailed
as aforesaid, such Defaulted Interest shall be paid to the Person in whose name
such Registered Security (or a Predecessor Security thereof) shall be
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 in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security 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 payment shall
be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the
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Person entitled thereto as such address shall appear in the Security Register
or by transfer to an account maintained by the payee with a bank located in the
United States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into shares of Common Stock or exchangeable for other securities,
which Registered Security is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted or exchanged, interest with
respect to which the Stated Maturity is after the date of conversion or
exchange of such Registered Security shall not be payable.
Section 3.8. 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 in
the Security Register as the owner of such Registered Security for the purpose
of receiving payment of principal of, any premium and (subject to Sections 3.5
and 3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or 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 any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
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Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and Coupons, as
well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly by the Trustee. 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 cancelled
promptly 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 or pursuant to this Indenture. All cancelled Securities
and Coupons held by the Trustee shall be disposed of by the Trustee in its
customary manner, unless by a Company Order the Company directs their return to
it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in
any Security, interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers.
The Company in issuing Securities may obtain CUSIP numbers (if then
generally in use) or other identifying numbers, and, if so obtained, the
Trustee shall use such 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.
The Company will promptly notify the Trustee of any change in the CUSIP or
other identifying numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining thereto (other than
(i) Coupons appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after such
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exchange whose surrender is not required or has been waived as provided in
Section 3.5, (ii) Securities and Coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.6, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender has
been waived as provided in Section 11.6, and (iv) Securities and Coupons of
such series 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 10.3) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of
(i) or (ii) below, any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in
the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for such purpose, money in the
Currency in which such Securities are payable in an amount sufficient to pay
and discharge the entire indebtedness on such Securities and any Coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation,
including the principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and any Coupons appertaining thereto,
to the date of such deposit (in the case of Securities which have become due
and payable) or to the Maturity thereof, as the case may be;
(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 and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Company and the Trustee with respect to the Securities of
such series under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the
payment of Additional Amounts, if any, with respect to such Securities as
contemplated by Section 10.4 (but only to the extent that the Additional
Amounts payable with respect to such Securities exceed the amount deposited in
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respect of such Additional Amounts pursuant to Section 4.1(1)(b)), and with
respect to any rights to convert or exchange such Securities into Common Stock
or other securities shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of
(i) defeasance of the Securities of or within a series under clause (2) of this
Section 4.2 shall not be applicable with respect to the Securities of such
series or (ii) covenant defeasance of the Securities of or within a series
under clause (3) of this Section 4.2 shall not be applicable with respect to
the Securities of such series, then such provisions, together with the other
provisions of this Section 4.2 (with such modifications thereto as may be
specified pursuant to Section 3.1 with respect to any Securities), shall be
applicable to such Securities and any Coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to
such Securities and any Coupons appertaining thereto, elect to have Section
4.2(2) or Section 4.2(3) be applied to such Outstanding Securities and any
Coupons appertaining thereto upon compliance with the conditions set forth
below in this Section 4.2.
(2) Upon the Company's exercise of the above option
applicable to this Section 4.2(2) with respect to any Securities of or within a
series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any Coupons
appertaining thereto on the date the conditions set forth in clause (4) of this
Section 4.2 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by such Outstanding Securities and any
Coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of clause (5) of this Section 4.2 and the
other Sections of this Indenture referred to in clauses (i) and (ii) below, and
to have satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Outstanding Securities
and any Coupons appertaining thereto to receive, solely from the trust fund
described in clause (4) of this Section 4.2 and as more fully set forth in such
clause, payments in respect of the principal of (and premium, if any) and
interest, if any, on, and Additional Amounts, if any, with respect to, such
Securities and any Coupons appertaining thereto when such payments are due, and
any rights of such Holder to convert such Securities into Common Stock or
exchange such Securities for other securities, (ii) the obligations of the
Company and the Trustee with respect to such Securities under Sections 3.5,
3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 10.4 (but only to the extent
that the Additional Amounts payable with respect to such Securities exceed the
amount deposited in respect of such Additional Amounts pursuant to Section
4.2(4)(a) below), and with respect to any rights to convert such Securities
into Common Stock or exchange such Securities for other securities, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Section 4.2. The Company may exercise its option under this Section 4.2(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 4.2 with respect to such Securities and any Coupons appertaining
thereto.
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(3) Upon the Company's exercise of the option to have this
Section 4.2(3) apply with respect to any Securities of or within a series, the
Company shall be released from its obligations under Sections 10.5, 10.6 and
10.7, and, to the extent specified pursuant to Section 3.1(19), any other
covenant applicable to such Securities, with respect to such Outstanding
Securities and any Coupons appertaining thereto on and after the date the
conditions set forth in clause (4) of this Section 4.2 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any Coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with any such covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any Coupons appertaining thereto, the Company may
omit to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 5.1(4) or 5.1(9) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 4.2 to any Outstanding Securities of or
within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.7 who shall agree to comply with the provisions of
this Section 4.2 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined on
the basis of the Currency in which such Securities and Coupons appertaining
thereto are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment of principal of (and premium, if any) and interest, if any, on such
Securities and any Coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (y) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any Coupons appertaining
thereto at the Stated Maturity of such principal or installment of principal or
premium or interest and (z) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any Coupons appertaining
thereto on the days on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and any Coupons
appertaining thereto.
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(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company is
a party or by which it is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit and, with respect to defeasance only, at
any time during the period ending on the 123rd day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from the Internal Revenue
Service a letter ruling, or there has been published by the Internal Revenue
Service a Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 4.2, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred.
(f) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, after the 123rd day after the date of
deposit, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof) deposited or
caused to be deposited with the Trustee (or other qualifying trustee) pursuant
to this clause (4) to be held in trust will not be subject to any case or
proceeding (whether voluntary or involuntary) in respect of the Company under
any Federal or State bankruptcy, insolvency, reorganization or other similar
law, or any decree or order for relief in respect of the Company issued in
connection therewith.
(g) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under clause (2)
or (3) of this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this
Section 4.2(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to Section
3.1.
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(5) Unless otherwise specified in or pursuant to this
Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a)
has been made, (a) the Holder of a Security in respect of which such deposit
was made is entitled to, and does, elect pursuant to Section 3.1 or the terms
of such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 4.2(4)(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the Foreign Currency
in which the deposit pursuant to Section 4.2(4)(a) has been made, the
indebtedness represented by such Security and any Coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any), and interest, if
any, on, and Additional Amounts, if any, with respect to, such Security as the
same becomes due out of the proceeds yielded by converting (from time to time
as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in which such
Security becomes payable as a result of such election or Conversion Event based
on (x) in the case of payments made pursuant to clause (a) above, the
applicable market exchange rate for such Currency in effect on the second
Business Day prior to each payment date, or (y) with respect to a Conversion
Event, the applicable market exchange rate for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities, and any
Coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any Coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest and Additional
Amounts, if any; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
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ARTICLE 5
REMEDIES
Section 5.1. Events of Default.
"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), unless such event is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Officers'
Certificate establishing the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of such series or any Additional Amounts payable with respect thereto,
when such principal or premium becomes or such Additional Amounts become due
and payable at their Maturity; or
(3) default in the deposit of any sinking fund or analogous payment
when and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant, warranty or
agreement of the Company in this Indenture or the Securities (other than a
covenant or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of a 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, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, 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) there occurs with respect to any issue or issues of Indebtedness of
the Company (including an Event of Default under any other series of
Securities) or any of its Restricted Subsidiaries having an outstanding
principal amount of $50,000,000 or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness exists on the date of this
Indenture or shall hereafter be created, (a) an event of default that has
caused the holder thereof to declare such Indebtedness to be due and payable
prior to its stated maturity and such Indebtedness has not been discharged in
full or such acceleration has not been rescinded or annulled within 30 days of
such acceleration and/or (b) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment shall not
have been made, waived or extended within 30 days of such payment default; or
(6) the Company or any of its Restricted Subsidiaries shall fail within
30 days to pay, bond or otherwise discharge uninsured judgments or court orders
for the payment of money
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in excess of $50,000,000 in the aggregate, which are not stayed on appeal or
are not otherwise being appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company or
any of its Restricted Subsidiaries in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(b) a decree or order adjudging the Company or any of its
Restricted Subsidiaries to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company or any of
its Restricted Subsidiaries and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of the
Company or any of its Restricted Subsidiaries or of any substantial part of the
property of the Company or any of its Restricted Subsidiaries, as the case may
be, or ordering the winding up or liquidation of the affairs of the Company or
any of its Restricted Subsidiaries; or
(8) the commencement by the Company or any of its Restricted
Subsidiaries of a voluntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Company or any of its
Restricted Subsidiaries to the entry of a decree or order for relief in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any insolvency
proceedings against it, or the filing by the Company or any of its Restricted
Subsidiaries of a petition or answer or consent seeking reorganization,
arrangement, adjustment or composition of the Company or any of its Restricted
Subsidiaries or relief under any applicable law, or the consent by the Company
or any of its Restricted Subsidiaries to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or similar official of the Company or any of its Restricted
Subsidiaries or any substantial part of the property of the Company or any of
its Restricted Subsidiaries or the making by the Company or any of its
Restricted Subsidiaries of an assignment for the benefit of creditors, or the
taking of corporate action by the Company or any of its Restricted Subsidiaries
in furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding (other than an Event of Default with respect to the Company
specified in clause (7) or (8) of Section 5.1) occurs and is continuing, then
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series, or such lesser amount as may be provided for in the
Securities of such series, to be due and payable immediately, by a notice in
writing to the Company (and to the
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Trustee if given by the Holders), and upon any such declaration such principal
or such lesser amount shall become immediately due and payable.
If an Event of Default with respect to the Company specified in clause (7)
or (8) of Section 5.1 occurs, all unpaid principal of and accrued interest on
and any Additional Amounts payable in respect of the Outstanding Securities of
that series (or such lesser amount as may be provided for in the Securities of
such series) shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder of any
Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series and any Coupon
appertaining thereto,
(b) the principal of and any premium on any Securities of such
series which have become due otherwise than by such declaration of acceleration
and interest thereon and any Additional Amounts with respect thereto at the
rate or rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue installments of any interest and
Additional Amounts at the rate or rates borne by or provided for in such
Securities, 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 all other amounts due the Trustee under Section 6.6;
and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest on,
and any Additional Amounts with respect to Securities of such series which
shall have become due solely by such declaration of acceleration, shall have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
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(1) default is made in the payment of any installment of interest on or
any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such 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 any premium
on any Security or any Additional Amounts with respect thereto at their
Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts
at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount of money as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
all other amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the money so due and unpaid, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and any
Coupons appertaining thereto and collect the monies 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 and any Coupons appertaining thereto,
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
Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 5.4. 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 of any series or the property of the Company or such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
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(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of any applicable series, of
the principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and 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
or counsel) and of the Holders of Securities or any Coupons appertaining
thereto allowed in such judicial proceeding, and
(2) 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 of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Subject to Article 16, as it may be modified pursuant to Section 3.1, 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 any premium, interest or
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 and any
predecessor Trustee under Section 6.6;
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SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts 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 aggregate amounts due and payable on such Securities
and Coupons for principal and any premium, interest and Additional Amounts,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining thereto
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such indemnity
as is reasonably satisfactory to it 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 such 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 or any Security to affect, disturb or prejudice the
rights of any other such Holders or Holders of Securities of any other series,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.
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, any premium and (subject to Sections
3.5 and 3.7) interest on, and any Additional Amounts with respect to such
Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon
(or, in the
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case of redemption, on the Redemption Date or, in the case of repayment at the
option of such Holder if provided in or pursuant to this Indenture, on the date
such repayment is due) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 5.10. 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 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is
intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall 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, to the extent permitted by law,
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or a Coupon may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
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(3) such direction is not unduly prejudicial to the rights of the other
Holders of Securities of such series not joining in such action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security of such series or any
Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
any undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.15 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of 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, if any, on or Additional Amounts, if any, with respect to any
Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the
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Redemption Date, and, in the case of repayment, on or after the date for
repayment) or for the enforcement of the right, if any, to convert or exchange
any Security into Common Stock or other securities in accordance with its
terms.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each case,
other than delivery of any Security, together with any Coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to Section 3.3
which shall be sufficiently evidenced as provided therein) and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the request
or direction of any of the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture, unless such Holders shall have
offered to the Trustee such security or indemnity as is reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document, but the Trustee, in its discretion, may but
shall not be obligated to 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, during
business hours and upon reasonable
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notice, the books, records and premises of the Company, personally or by agent
or attorney, at the sole expense of the Company;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it, or any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent, acted in bad faith or engaged in willful
misconduct;
(9) the Authenticating Agent, Paying Agent, and Security Registrar
shall have the same protections as the Trustee set forth hereunder;
(10) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with an Act
of the Holders hereunder, and, to the extent not so provided herein, with
respect to any act requiring the Trustee to exercise its own discretion,
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 or any Securities, unless it shall be
proved that, in connection with any such action taken, suffered or omitted or
any such act, the Trustee was negligent, acted in bad faith or engaged in
willful misconduct;
(11) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(12) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a
Responsible Officer of the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any), or interest, if any, on, or
Additional Amounts or any sinking fund or purchase fund installment with
respect to, any Security 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 and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such
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series; and provided, further, that in the case of any default of the character
specified in Section 5.1(5) 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 6.3. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights
it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law and shall be held uninvested. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing by the Company and the Trustee for all services
rendered by the Trustee 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 or arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder (including the reasonable
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compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the
Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers, directors and
employees and any predecessor Trustee for, and to hold them harmless against,
any and all loss, damage, claim, liability or expense, including taxes (other
than taxes based upon, measured by or determined by the income of the Trustee),
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 their powers or duties hereunder, except to the extent
that any such loss, damage, claim, liability or expense was due to the
Trustee's negligence or willful misconduct.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by the
Trustee after a default specified in or pursuant to Section 5.1 is intended to
constitute an expense of administration under any then applicable bankruptcy or
insolvency law. "Trustee" for purposes of this Section 6.6 shall include any
predecessor Trustee but the negligence or willful misconduct of any Trustee
shall not affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the
Trustee and shall apply with equal force and effect to the Trustee in its
capacity as Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United States
of America, any state thereof or the District of Columbia, that is eligible
under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000 and that is subject to supervision or
examination by Federal or state authority. 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.
(2) The following indentures shall be considered specifically described
herein for purposes of clause (i) of the proviso contained in Section 310(b)(1)
of the Trust Indenture Act: Indenture Relating to Subordinated Debt Securities
dated as of _____, 2000 between the Company and The Bank of New York as
trustee; and pursuant to Section 310(b)(1)(C)(i) of the Trust Indenture Act,
unless otherwise ordered by the Commission, an Event of Default by the Company
under this Indenture will not disqualify the Trustee under this Indenture
because it is a trustee under such other indenture.
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Section 6.8. Resignation and Removal; Appointment of Successor.
(1) 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 pursuant to Section 6.9.
(2) 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 6.9 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction, at the expense of the Company, for the appointment of a
successor Trustee with respect to such series.
(3) 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 the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.9 shall not have been delivered to the Trustee within 30
days after delivery of such Act of Holders, the Trustee being removed may
petition any court of competent jurisdiction, at the expense of the Company,
for the appointment of a successor Trustee with respect to such series.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or any
Holder of a Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.7
and shall fail to resign after written request therefor by the Company or any
such Holder, or
(c) 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 or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(5) 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 or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of such series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of
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such series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.9. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.9, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by Section 6.9, any Holder of a
Security 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.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Registered Securities, if any, of such series as their names
and addresses appear in the Security Register and, if Securities of such series
are issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United
States. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
(7) In no event shall any retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges, shall execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and, subject to Section 10.3, shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
6.6.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee 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, such successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to
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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, 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 that no Trustee shall be responsible for any notice given to,
or received by, or any act or failure to act on the part of any other Trustee
hereunder, 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, such retiring Trustee shall have no further
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates other than as hereinafter expressly set forth,
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 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 such successor Trustee, such retiring Trustee, upon payment of its charges
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates and subject to Section 10.3 shall duly
assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject to
its claim, if any, provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a 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 (1) or (2) of this Section, as the
case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 6.10. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
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.
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Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, 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 must be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a Corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, 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 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 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 (i) mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. 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.
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The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By ,
------------------------------------
as Authenticating Agent
By ,
------------------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series, at least
seven Business Days prior to each Interest Payment Date and the Stated Maturity
Date of such Securities, or upon such other dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto authorizing
such series, a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the applicable date, and
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(2) 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 as of a date not more than 15 days prior to the time such list
is furnished,
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the Trustee,
any Paying Agent or any Security Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312(c) of the Trust Indenture
Act, 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 312(b) of the Trust Indenture Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after February 15 of each year commencing with the
first February 15 following the first issuance of Securities pursuant to
Section 3.1, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act,
a brief report dated as of such February 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of the
immediately preceding February 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313 of
the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act. In addition, a copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange,
if any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
Section 7.4. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) 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; or, if
the
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Company is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company,
with the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
(whether or not affiliated with the Company), or convey, transfer or lease its
property and assets as an entirety or substantially as an entirety, to any
other Person (whether or not affiliated with the Company); and the Company
shall not permit any other Person (whether or not affiliated with the Company)
to consolidate with or merge into the Company or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company as an entirety or substantially as an entirety shall be a Corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, any
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premium and interest on and any Additional Amounts with respect to all the
Securities and the performance of every obligation in this Indenture,
including, if any Securities are then secured pursuant to Article 16, any
Collateral Documents, and the Outstanding Securities on the part of the Company
to be performed or observed and shall provide for conversion or exchange rights
in accordance with the provisions of the Securities of any series that are
convertible or exchangeable into Common Stock or other securities;
(2) immediately after giving effect to such transaction, and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default or event which,
after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease 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 8.2. Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 8.1, 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 a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, or any amendment, restatement, supplement or other modification to any
Collateral Document, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company contained
herein and in the Securities;
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company;
(3) to add to or change any of the provisions of this Indenture to
facilitate the issuance of Bearer Securities or to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal of, any premium or interest on or any
Additional Amounts with respect to Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer Securities to
be exchanged for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
provided any such action shall not adversely affect the interests of the
Holders of Outstanding Securities of any series or any Coupons appertaining
thereto in any material respect;
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 2.1 and 3.1;
(5) 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
6.9;
(6) to cure any ambiguity or 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 which shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect;
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth;
(8) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture);
(9) 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 Article Four, provided that
any such action shall not adversely affect the interests of any Holder of
Outstanding Securities of such series and any Coupons appertaining thereto or
any other Outstanding Security or Coupon in any material respect;
(10) to secure the Securities, or create additional security, or
release any security, for the Securities, pursuant to Section 10.5 or Article
16 or otherwise;
(11) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series;
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(12) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities then
Outstanding; or
(13) to amend or supplement any provision contained herein, provided
that such amendment or supplement does not apply to any Outstanding Securities
issued prior to the date of such amendment or supplement and entitled to the
benefits of such provision.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's 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
under this Indenture or of the Securities of such series; provided, however,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional Amounts
pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and
permitted by Section 9.1(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 5.2 or
the amount thereof provable in bankruptcy pursuant to Section 5.4, change the
redemption provisions or adversely affect the right of repayment at the option
of any Holder as contemplated by Article Thirteen, or change the Place of
Payment, Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder, on or
after the date for repayment),
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 15.4 for quorum or voting,
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.9, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby,
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(4) affect the ranking, or with respect to Collateral, the priority or
security, of the Securities of each applicable series secured pursuant to
Article 16 (other than as expressly permitted in Article 16 or in the
supplemental indenture relating to the Securities or the terms of such
Securities, in each case at the time of issuance of such Securities) in a
manner adverse to the Holders of any such Securities,
(5) make any change that adversely affects the right to convert or
exchange any Security into or for Common Stock of the Company or other
securities (whether or not issued by the Company), cash or property in
accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included expressly and 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 of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall receive, and
(subject to Section 315 of the Trust Indenture Act) 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 and an
Officers' Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4. 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 a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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Section 9.6. 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 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of such series are listed on such exchange. 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
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Corporate Trust Office of the Trustee, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered
for payment at the place specified for the purpose with respect to such
Securities as provided in or pursuant to this Indenture, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities shall be made at any Office or Agency in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the
full amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other Offices
or Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind 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 shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
Office or Agency. Unless otherwise provided in or pursuant to this Indenture,
the Company hereby designates as the Place of Payment for each series of
Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company in the Borough of Manhattan, The City of New York for such purpose.
The Company may subsequently appoint a different Office or Agency in the
Borough of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
Section 10.3. 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, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or currencies,
Currency unit or units or composite Currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 3.1 for the Securities of such series) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such
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sums shall be paid to such Persons or otherwise disposed of as herein provided,
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, any
premium or interest on or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying Agent a sum (in the Currency or
currencies, Currency unit or units or composite Currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, 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 shall 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 shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of any
payment of principal, any premium or interest on or any Additional Amounts with
respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security or any Coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall, at the request and expense of the
Company, cause to be published once, in an
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Authorized Newspaper in each Place of Payment for such series or to be mailed
to Holders of Registered Securities of such series, or both, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or mailing nor shall
it be later than two years after such principal and any premium or interest or
Additional Amounts shall have become due and payable, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. 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 any 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 by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal 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 to the Trustee and the principal Paying Agent or Paying Agents,
if other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who
are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
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 agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. The Company covenants to
fully indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence,
bad faith or willful misconduct on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
Section 10.5. Limitations upon Liens.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume or guarantee any Indebtedness
secured by any Lien on any property
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(including shares of Capital Stock or Indebtedness) or assets of the Company or
any Restricted Subsidiary, whether now owned or hereafter acquired, without in
any such case effectively providing concurrently with the creation, incurrence,
issuance, assumption or guarantee of such Indebtedness or the grant of any Lien
with respect to such Indebtedness that all Securities Outstanding at such time
(together with, if the Company so determines, any other Indebtedness of the
Company or such Restricted Subsidiary then existing or thereafter created which
is not subordinate to the Securities Outstanding at such time) will be secured
by any such Lien equally and ratably with (or prior to) such secured
Indebtedness, so long as such secured Indebtedness is so secured; provided,
however, that no such Lien shall be granted with respect to any Indebtedness
under this Section 10.5(a) so long as prohibited by the Credit Facility or
otherwise. The foregoing restriction and proviso will not, however, apply to
Indebtedness secured by:
(i) Liens on property or assets of the Company or any Restricted
Subsidiary existing on the date of the original issuance of
the applicable series of Securities or such other date as may
be specified for an applicable series of Securities,
(ii) Liens on shares of Capital Stock of any Subsidiary of the
Company securing Indebtedness of the Company under the Credit
Facility, whether now existing or hereafter arising,
(iii) Liens on property or assets of any Person existing at the
time such Person becomes a Restricted Subsidiary or is merged
with or into or consolidated with the Company or a Restricted
Subsidiary, or at the time of a sale, lease or other
disposition of the properties of a Person as an entirety or
substantially as an entirety to the Company or a Restricted
Subsidiary, or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of
such Person becoming a Restricted Subsidiary and not in
contemplation of any such merger or consolidation or any such
sale, lease or other disposition; provided that such Liens
shall not extend to any other property or assets of the
Company or any Restricted Subsidiary,
(iv) Liens on property or assets of the Company or any Restricted
Subsidiary existing at the time of acquisition thereof
(including acquisition through merger or consolidation);
provided that such Liens were in existence prior to and were
not created in contemplation of such acquisition and shall
not extend to any other property or assets of the Company or
any Restricted Subsidiary,
(v) Liens on property (including in the case of a plant or
facility, the land on which it is erected and fixtures
comprising a part thereof) or assets of the Company or any
Restricted Subsidiary securing the payment of all or any part
of the purchase price or construction cost thereof or
securing any Indebtedness created, incurred, assumed or
guaranteed prior to, at the time of or within 180 days after,
the acquisition of such property or assets or the completion
of any such construction, whichever is later, for the purpose
of financing all or any part of the purchase price or
construction cost thereof (provided, in the case of Liens
securing the payment of all or any part of the purchase price
of any property or assets of the Company or any Restricted
Subsidiary, as the case may be, or securing any Indebtedness
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created, incurred, assumed or guaranteed for the purposes of
financing all or any part of such purchase price, such Liens
are limited to the property or assets then being acquired and
fixed improvements thereon and the Capital Stock of any
person formed to acquire such property or assets, and,
provided further, that in the case of Liens securing the
payment of all or any part of the construction cost of any
property of the Company or any Restricted Subsidiary, as the
case may be, or securing any Indebtedness created, incurred,
assumed or guaranteed for the purpose of financing all or any
part of such construction cost, such Liens are limited to the
assets or property then being constructed and the land on
which such property is erected and fixtures comprising a part
thereof),
(vi) Liens on property or assets to secure all or any part of the
cost of development, operation, construction, alteration,
repair or improvement of all or any part of such property or
assets, or to secure Indebtedness incurred prior to, at the
time of or within 180 days after, the completion of such
development, operation, construction, alteration, repair or
improvement, whichever is later, for the purpose of financing
all or any part of such cost (provided such Liens do not
extend to or cover any property or assets of the Company or
any Restricted Subsidiary other than the property or assets
then being developed, constructed, altered, repaired or
improved and the land on which such property is erected and
fixtures comprising a part thereof),
(vii) Liens which secure Indebtedness owing by a Restricted
Subsidiary to the Company or to a Restricted Subsidiary,
(viii) Liens on the property of the Company or a Restricted
Subsidiary in favor of the United States of America or any
State thereof, or any department, agency, instrumentality or
political subdivision of the United States of America or any
State thereof, or in favor of any other country, or any
department, agency, or instrumentality or political
subdivision thereof, in each case (a) securing partial,
progress, advance or other payments pursuant to any contract
or statute, (b) securing indebtedness incurred to finance all
or any part of the purchase price or cost of constructing,
installing or improving the property subject to such
mortgages including mortgages to secure Indebtedness of the
pollution control or industrial revenue bond type, or (c)
securing indebtedness issued or guaranteed by the United
States of America, any State, any foreign country or any
department, agency, instrumentality or political subdivision
of any such jurisdiction,
(ix) statutory or common law landlords', carriers',
warehouseman's, mechanics', suppliers', materialmens',
repairmen's, or other like Liens arising in the ordinary
course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate
legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with
GAAP shall have been made,
(x) Liens for taxes, assessments or governmental charges that are
being contested in good faith by appropriate legal
proceedings promptly instituted and diligently
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conducted and for which adequate reserves or other
appropriate provisions are being maintained, to the extent
required by GAAP,
(xi) zoning restrictions, easements or minor defects or
irregularities in title and other similar charges or
encumbrances on property not interfering in any material
respect with the use of such property by the Company or any
Restricted Subsidiary,
(xii) customary deposit arrangements entered into in connection
with acquisitions,
(xiii) Liens in favor of the Trustee or the trustee under any
indenture for debt securities of the Company, as provided for
in the applicable indenture on money or property held or
collected by the applicable trustee in its capacity as
trustee,
(xiv) Liens that are within the general parameters customary in the
industry and incurred in the ordinary course of business
securing Indebtedness under any Interest Rate Agreement or
Currency Agreement designed solely to protect the Company or
any of its Restricted Subsidiaries from fluctuations in
interest rates, currencies or the price of commodities,
(xv) Liens incurred (a) in connection with workers' compensation,
unemployment insurance and other types of statutory
obligations or the requirements of any official body, or (b)
to secure the performance of Surety Obligations incurred in
the ordinary course of business consistent with industry
practice, or (c) to obtain or secure obligations with respect
to letters of credit, guarantees, bonds or other sureties or
assurances given in connection with the activities described
in clauses (a) and (b) above, in each case not incurred or
made in connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred purchase
price of property or services, or (d) Liens securing
performance of leases, construction, sales or servicing
contracts and similar obligations incurred in the ordinary
course of business, in each case not incurred or made in
connection with the borrowing of money,
(xvi) judgment Liens against the Company or any Restricted
Subsidiary not giving rise to an Event of Default, and
(xvii) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or
replacements), in whole or in part, of any of the Liens
referred to in paragraphs (i) through (xvi) above or the
Indebtedness secured thereby.
Notwithstanding the foregoing, the Company and any Restricted
Subsidiary may create, incur, issue or assume Indebtedness secured by a Lien
which would otherwise be subject to the foregoing restrictions if the aggregate
principal amount of all Indebtedness secured by Liens on property or assets of
the Company and of any Restricted Subsidiary then outstanding (not including
any such Indebtedness secured by Liens permitted to be incurred pursuant to
paragraphs (i) through (xvii) above) plus Attributable Debt of the Company and
its Restricted Subsidiaries in respect of Sale and Leaseback Transactions that
would otherwise be subject to the restrictions in
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Section 10.6 does not at the time such Indebtedness is incurred exceed an amount
equal to 10% of Consolidated Net Tangible Assets.
(b) For the purposes of clause (a) above, the giving of a
guarantee which is secured by a Lien and the creation of a Lien to secure
Indebtedness which existed prior to the creation of such Lien, will be deemed to
involve the creation of Indebtedness in an amount equal to the principal amount
guaranteed or secured by such Lien; but the amount of Indebtedness secured by
Liens will be computed without cumulating the underlying Indebtedness with any
guarantee thereof or Lien securing the same.
(c) For the purposes of determining compliance with this
Section 10.5, in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness described in clause (a) above, the
Company, in its sole discretion, will classify, and may reclassify, such
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of the items of clause (a) above may be divided and
classified and reclassified into more than one of the types of Indebtedness
described above.
(d) The provisions of this Section 10.5 shall be subject
to the provisions of Article 16, as they may be modified pursuant to Section
3.1, in the case of any series of Securities secured pursuant to Article 16,
such that the provisions of this Section 10.5, including the 10% exception
referred to in Section 105(a), shall not apply to limit the right of Holders of
Securities secured pursuant to Article 16 to be secured equally and ratably with
the Lenders under the Credit Facility with regard to any Collateral from time to
time pledged pursuant to the Credit Facility.
Section 10.6. Limitations upon Sales and Leasebacks.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any arrangement after the date of the original issuance of the
applicable series of Securities or such other date as may be specified for an
applicable series of Securities with any bank, insurance company or other lender
or investor (other than the Company or another Restricted Subsidiary) providing
for the leasing by the Company or any such Restricted Subsidiary of any property
or assets for a period of more than three years, which was or is owned or leased
by the Company or a Restricted Subsidiary and which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such property or assets (herein referred
to as a "Sale and Leaseback Transaction") unless either:
(i) the Company and its Restricted Subsidiaries would be entitled,
pursuant to Section 10.5, to incur Indebtedness secured by a
Lien on such property or assets in a principal amount equal to
or exceeding the Attributable Debt in respect of such Sale and
Leaseback Transaction without equally and ratably securing the
applicable series of Securities; or
(ii) the Company, within 180 days after the sale or transfer,
applies or causes a Restricted Subsidiary to apply an amount
equal to the greater of the net proceeds of such sale or
transfer or the fair value of the property or assets subject
to such sale or transfer at the time of such sale or transfer
(as determined by any two of the
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following: the President, any Vice President, the Treasurer
and the Controller of the Company) to the retirement of
Securities or other Funded Debts of the Company (other than
Funded Debt subordinated to the Securities) or Funded Debt of
a Restricted Subsidiary; provided that the amount to be so
applied shall be reduced by (a) the principal amount of
Securities delivered within 180 days after such sale or
transfer to the Trustee for retirement and cancellation, and
(b) the principal amount of any such Funded Debt of the
Company or a Restricted Subsidiary, other than Securities,
voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale or transfer to the Trustee for
retirement and cancellation, excluding in the case of both (a)
and (b), retirement pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision or by payment at
maturity.
Section 10.7. Restrictions on Funded Debt of Restricted Subsidiaries.
The Company will not permit any Restricted Subsidiary to create, incur,
issue, assume or guarantee any Funded Debt. This restriction will not apply if:
(i) The Company or such Restricted Subsidiary could create
Indebtedness secured by Liens in accordance with one or more
of clauses (i) through (xvii) of Section 10.5 (a) (whether or
not such Indebtedness is in fact secured by Liens) or enter
into a Sale and Leaseback Transaction in accordance with
Section 10.6 in an amount equal to such Funded Debt, without
equally and ratably securing the Securities,
(ii) such Funded Debt existed on the date of the original issuance
of the applicable series of Securities or such other date as
may be specified for an applicable series of Securities,
(iii) such Funded Debt is owed to the Company or any Restricted
Subsidiary,
(iv) such Funded Debt existed at the time the Person that issued
such Funded Debt became a Restricted Subsidiary, or was merged
with or into or consolidated with such Restricted Subsidiary,
or at the time of a sale, lease or other disposition or the
properties of such Person as an entirety to such Restricted
Subsidiary, or arising thereafter
(a) otherwise than in connection with the borrowing of
money arranged thereafter and
(b) pursuant to contractual commitments entered into
prior to and not in contemplation of such Person
becoming a Restricted Subsidiary and not in
contemplation of any such merger or consolidation or
any such sale, lease or other disposition,
(v) such Funded Debt is guaranteed by the Company,
(vi) such Funded Debt is guaranteed by a governmental agency,
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(vii) such Funded Debt is issued, assumed or guaranteed in
connection with, or with a view to, compliance by such
Restricted Subsidiary with the requirements of any program
adopted by any federal, state or local governmental authority
and applicable to such Restricted Subsidiary and providing
financial or tax benefits to such Restricted Subsidiary which
are not available directly to the Company,
(viii) such Funded Debt is issued, assumed or guaranteed to pay all
or any part of the purchase price or the construction cost of
property or equipment acquired or constructed by a Restricted
Subsidiary, provided such Funded Debt is incurred within 180
days after acquisition, completion of construction or
commencement of full operation of such property, whichever is
later, and, provided further, that the principal amount of
such Funded Debt does not exceed 100% of the fair market value
of the property or equipment acquired or constructed,
(ix) such Funded Debt is nonrecourse, or
(x) such Funded Debt is incurred for the purpose of extending,
renewing, substituting, replacing or refunding Funded Debt
permitted by the foregoing clauses (i) through (ix).
Notwithstanding the foregoing, any Restricted Subsidiary may create,
incur, issue, assume or guarantee Funded Debt which would otherwise be subject
to the foregoing restrictions in an aggregate principal amount which, together
with the aggregate outstanding principal amount of all other Funded Debt of the
Company's Restricted Subsidiaries which would otherwise be subject to the
foregoing restrictions (not including Funded Debt permitted to be incurred
pursuant to clauses (i) through (x) above), does not at the time such Funded
Debt is incurred exceed an amount equal to 10% of Consolidated Net Tangible
Assets.
Section 10.8. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the existence of each of its Restricted Subsidiaries and the
rights (charter and statutory) and franchises of the Company and each of its
Restricted Subsidiaries; provided, however, that the foregoing shall not
obligate the Company to preserve the existence of any of its Restricted
Subsidiaries or any such right or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not disadvantageous in any material respect
to any Holder.
Section 10.9. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.5 through 10.8, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series, by Act of such Holders, either shall
waive such compliance in such instance or generally shall have waived compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
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the Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
Section 10.10. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, stating that
(a) a review of the activities of the Company during
such year and of its performance under this Indenture has been made under his or
her supervision, and
(b) to the best of his or her knowledge, based on
such review, (a) the Company has complied with all the conditions and covenants
imposed on it under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such condition or covenant, specifying each
such default known to him or her and the nature and status thereof, and (b) no
event has occurred and is continuing which is, or after notice or lapse of time
or both would become, an Event of Default, or, if such an event has occurred and
is continuing, specifying each such event known to him and the nature and status
thereof.
(2) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or any
event which after notice or lapse of time or both would become an Event of
Default pursuant to clause (4) of Section 5.1.
Section 10.11. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date,
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interest rate or formula, Stated Maturity and other terms, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of
such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock or exchanged for other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such Security
will receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to accrue on and
after said date,
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and any accrued interest and Additional Amounts pertaining
thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all Coupons maturing subsequent to the 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,
(9) if Bearer Securities of any series are to be redeemed and
no Registered Securities of such series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 3.5 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are
convertible into Common Stock of the Company or exchangeable for other
securities, the conversion or exchange price or rate, the date or dates on which
the right to convert or exchange the principal of the Securities of such series
to be redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Clearstream
reference numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
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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 11.5. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York City time, on any Redemption Date,
the Company shall deposit, with respect to the Securities of any series called
for redemption pursuant to Section 11.4, 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 10.3) an amount of money in the applicable Currency
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date, unless otherwise specified pursuant to
Section 3.1 or in the Securities of such series) any accrued interest on and
Additional Amounts with respect thereto, all such Securities or portions thereof
which are to be redeemed on that date.
Section 11.6. 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 void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 10.2),
and provided, further, that, except as otherwise specified in or pursuant to
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons
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at an Office or Agency for such Security located outside of the United States
except as otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (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 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, containing identical terms and provisions, 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. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. 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 permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
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 such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. 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 and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
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Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of 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 fund
payment shall be reduced accordingly. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory 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 delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 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 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not
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operate as a payment, redemption or satisfaction of the Indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
13.1, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such place outside the United States 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
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<PAGE> 86
at such meeting, shall be given, in the manner provided in Section 1.6, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 15.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 1.6) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (1) of this Section.
Section 15.3. 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 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), 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 the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent,
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<PAGE> 87
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 1.4
and the appointment of any proxy shall be proved in the manner specified in
Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(2) 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 15.2(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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Section 15.6. 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. 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.
ARTICLE 16
SECURITY
Section 16.1. Applicability of Article.
The securing of payments due on Securities of any series, if so
provided pursuant to Section 3.1 in respect of such series, shall be done in
accordance with this Article, except as the provisions of this Article may be
modified, superseded or supplemented by the terms of such Securities.
The security interest or interests granted pursuant to this Article in
any Collateral shall continue for so long as, but only for so long as, the
security interest or interests granted in such Collateral in connection with the
Credit Facility are not terminated or otherwise released by the Lenders that are
parties to the Credit Facility and shall terminate in any event when the Credit
Facility expires; provided, that the security interest or interest granted
pursuant to this Article shall continue in effect in the event of any amendment,
extension, renewal, substitution or replacement, or successive amendment,
extension, renewal, substitution or replacement, of the Credit Facility or any
obligations owing under the Credit Facility.
Section 16.2. Collateral Documents.
In order to secure, equally and ratably with obligations owing under
the Credit Facility, the due and punctual payment of the principal of, premium,
if any, and interest on the Securities of each applicable series, or any
Additional Amounts payable with respect thereto, when and as the same shall be
due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest (to the extent permitted by law), if any, on the
Securities of each applicable series, or any Additional
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<PAGE> 89
Amounts payable with respect thereto, and performance of all other obligations
of the Company to the Holders or the Trustee under this Indenture and the
Securities of each applicable series, according to the terms hereof or thereof,
the Company shall, prior to or simultaneously with the initial issuance of
Securities secured in accordance with this Article 16, enter into the Collateral
Documents and make an assignment and pledge of its rights, title and interests
in and to the Collateral to the Collateral Agent pursuant to the Collateral
Documents and to the extent therein provided. The Company covenants and agrees,
for the benefit of Securities secured pursuant to this Article, to duly perform
all of its obligations under the Collateral Documents. Each Holder of a Security
of an applicable series, by its acceptance thereof, consents and agrees to the
terms of the Collateral Documents (including, without limitation, the provisions
providing for the release of Collateral) as the same may be in effect or may be
amended from time to time in accordance with their terms, and authorizes and
directs the Collateral Agent to enter into each of the Collateral Documents to
which it is a party and to perform its obligations and exercise its rights
thereunder in accordance therewith; provided, however, that if any provision of
the Collateral Documents limits, qualifies or conflicts with the duties imposed
by the provisions of the Trust Indenture Act, the Trust Indenture Act shall
control. The Company shall execute, acknowledge and deliver to the Trustee and
the Collateral Agent such further assignments, transfers, assurances or other
instruments as the Trustee or the Collateral Agent may require or request, and
will do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the Trustee or the Collateral Agent to assure
and confirm to the Trustee and the Collateral Agent the equal and ratable
security interest in the Collateral contemplated hereby and, by the Collateral
Documents or any part thereof, as from time to time constituted, so as to render
the same available for the equal and ratable security and benefit of this
Indenture and of the Securities of each applicable series secured pursuant to
this Article together with each of the other Lenders, according to the intent
and purposes herein expressed. The Collateral Documents will create a valid,
perfected lien on and security interest in the Collateral for the equal and
ratable benefit of Holders of Securities of each applicable series and of each
of the Lenders as set forth therein.
Notwithstanding any provision to the contrary in this Indenture,
including Section 10.5, on or after the date Securities of any applicable series
are secured as provided above, the Company shall not, and shall not permit any
Restricted Subsidiary to, grant any Lien with respect to obligations owing under
the Credit Facility on any property (including shares of Capital Stock or
Indebtedness) or assets of the Company or any Restricted Subsidiary, whether now
owned or hereafter acquired, without in any such case effectively providing
concurrently with the grant of any such Lien that all Securities of each
applicable series Outstanding at such time will be secured by any such Lien
equally and ratably with any obligation owing under the Credit Facility, by
immediately creating a perfected security interest in favor of the Collateral
Agent in such Collateral pursuant to the Collateral Documents for the equal and
ratable benefit of the Securities of each applicable series secured pursuant to
this Article 16 and, to the extent reasonably determined necessary or desirable
by the Trustee or the Collateral Agent, additional security documents shall be
entered into in order to effectively grant such perfected security interests,
together with such other documents, certificates, resolutions, instruments,
financing statements, opinions and writings that would have been required to be
delivered if such perfected security interests had been created on the date of
this Indenture, all of which shall be in form and substance satisfactory to the
Trustee and the Collateral Agent.
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<PAGE> 90
Section 16.3. Perfection and Opinions.
(a) The Company shall furnish to the Trustee promptly after
the creation of a security interest for the benefit of the Holders of Securities
of each applicable series an Opinion of Counsel either (i) stating that in the
opinion of such counsel all action has been taken with respect to the delivery
of the Collateral to the Collateral Agent and the execution, registration and/or
filing of any other instruments necessary to make effective the Liens intended
to be created by this Article of the Indenture and the Collateral Documents, and
reciting the details of such action or (ii) stating that, in the opinion of such
counsel, no such action is necessary to make such Liens effective.
(b) So long as any Securities of any series are secured
pursuant to this Article 16, the Company shall furnish in respect of each such
series to the Collateral Agent and the Trustee at least once each year, as close
as possible to the anniversary of the applicable opinion delivered pursuant to
Section 16.3(a), an Opinion of Counsel, dated as of such date, either (i)(1)
stating that, in the opinion of such counsel, action has been taken with respect
to the recording, registering, filing, re-recording, re-registering and refiling
of all supplemental indentures, financing statements, continuation statements or
other instruments of further assurance as is necessary to maintain the Lien of
the Collateral Documents and reciting with respect to the security interests in
the collateral the details of such action or referring to prior Opinions of
Counsel in which such details are given and (2) stating that all financing
statements and continuation statements have been executed and filed that are
necessary as of such date and during the succeeding six months fully to preserve
and protect the rights of the Holders of Securities of the applicable series and
the Collateral Agent and the Trustee hereunder and under the Collateral
Documents with respect to the security interests in the Collateral, or (ii)
stating that, in the opinion of such counsel, no such action is necessary to
maintain such Lien and assignment.
Section 16.4. Release of Collateral.
Collateral may be released from the lien and security interest created
by the Collateral Documents at any time or from time to time at the sole cost
and expense of the Company and in accordance with the terms hereof and of the
Collateral Documents. Without limiting the generality of the foregoing, it is
specifically acknowledged that the Collateral shall be released from the lien in
favor of the Holders of Securities of the applicable series concurrently with
being released from the lien in favor of all Lenders having an interest in the
Collateral under the Collateral Documents. The Trustee shall execute, deliver or
acknowledge any necessary or proper instruments of termination, satisfaction or
release provided by or on behalf of the Company to evidence the release of any
Collateral permitted to be released pursuant to this Indenture or the Collateral
Documents.
The release of any Collateral from the terms hereof and of the
Collateral Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms hereof and of the Collateral
Documents. The Trustee and each of the Holders of Securities of each applicable
series acknowledge that a release of Collateral in accordance with the terms of
the Collateral Documents shall not be deemed for any purpose to be an impairment
of the security under this Indenture.
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<PAGE> 91
Section 16.5. Certificates of the Company and the Trustee.
(1) To the extent applicable the Company shall comply with (a)
ss. 314(b) of the Trust Indenture Act, relating to Opinions of Counsel regarding
the lien of the Collateral Documents and (b) ss. 314(d) of the Trust Indenture
Act, relating to the release of Collateral from the lien of the Collateral
Documents and Officers' Certificates or other documents regarding fair value of
the Collateral.
(2) The Trustee shall deliver to the Collateral Agent:
(a) in the event that the Company has failed to
deliver the Officers' Certificate required by clause (1) of this Section 16.5,
within thirty days of the date on which such Officers' Certificate was required
to be delivered, a certificate notifying the Collateral Agent of such failure;
and
(b) in the event that the Company shall subsequently
cure such failure described in clause (a) hereof, within thirty days of the
receipt by the Trustee of such Officers' Certificate, a certificate stating that
the Company has cured such failure.
(3) In the event that the Company wishes to release Collateral
in accordance with the Collateral Documents, it shall deliver to the Trustee and
the Collateral Agent the certificates and documents required by Section 314(d)
of the Trust Indenture Act as well as an Officers' Certificate requesting the
release of Collateral and an Opinion of Counsel to the effect that such
documents constitute all documents required by Section 314(d) of the Trust
Indenture Act.
Section 16.6. Authorization of Actions to be taken by the Trustee under
the Collateral Documents.
Each Holder, by acceptance of a Security of an applicable series,
consents and agrees to the terms of the Collateral Documents as the same may be
in effect or may be amended from time to time in accordance with the terms
thereof and hereof and authorizes and directs the Trustee to enter into the
Collateral Documents, or any amendment thereto necessary or advisable in order
to extend the security provided by this Article 16 to any series of Securities
being issued under this Indenture, and to perform its obligations and exercise
its rights thereunder in accordance therewith. The Trustee may, in its sole
discretion and without the consent of the Holders, on behalf of the Holders,
take all actions it deems necessary or appropriate in order to (a) enforce any
of the terms of the Collateral Documents and (b) collect and receive any and all
amounts payable in respect of the obligations of the Company to the Holders or
the Trustee hereunder. The Trustee shall have the power, consistent with the
terms of this Indenture and the Collateral Documents, to institute and to
maintain such suits and proceedings as it may deem expedient to (i) collect and
receive any and all amounts payable in respect of the obligations of the Company
hereunder, (ii) prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Collateral Documents or this Indenture, and
(iii) preserve or protect its interests and the interests of the Holders of
Securities of each applicable series in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
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interest hereunder or be prejudicial to the interests of the Holders or of the
Trustee). Subject to the limitations set forth in clause (4) of Section 9.2
hereof, in the event that the Trustee on behalf of the Holders shall act, make
elections or vote under the Collateral Documents, the Trustee shall act, make
elections or vote as directed by the Holders of a majority in principal amount
of the then outstanding Securities of each applicable series secured pursuant to
this Article and all of the Holders of Securities of each such applicable series
shall be bound by such direction.
Section 16.7. Authorization of Receipt of Funds by the Trustee under
the Collateral Documents.
The Trustee is authorized to receive for the benefit of the Holders of
Securities of each applicable series any funds distributed under the Collateral
Documents, and to make further distributions of such funds to the Holders of
Securities of each applicable series according to the provisions of this
Indenture and the Collateral Documents.
Section 16.8. Disposition of Proceeds.
(1) The proceeds of any sale or disposition of all or any part
of the Collateral shall be applied by the Trustee in the following order:
(a) first, to the payment of all amounts due the
Trustee and any predecessor Trustee hereunder;
(b) second, to the payment of the amount then due and
unpaid upon the Securities entitled to the benefits of this Article 16 for the
principal, premium, if any, Additional Amounts, if any, and interest 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 aggregate amount
due and payable on such Securities for principal, premium, if any, Additional
Amounts, if any, and interest;
(c) third, to be held by the Trustee, in trust for
the benefit of the holders of Securities entitled to the benefits of this
Article 16, for payment of any amounts that become due but remain unpaid upon
such Securities in the future, until such time as all principal, premium, if
any, Additional Amounts, if any, and interest in respect of which or for the
benefit of which such money has been collected, has been paid in full; and
(d) finally, the balance, if any, to the Person or
Persons entitled thereto.
(2) Any amounts held in trust pursuant to clause (1)(c) of
this Section 16.8 shall be invested by the Trustee in Government Obligations at
the written direction of the Company. If the Company fails to so direct the
Trustee in writing, the Trustee may invest such amounts in instruments of the
type described in clause (i) of the definition of Government Obligations which
have a maturity of not more than three months from the date of acquisition.
(3) In the event that the proceeds of any sale or other
disposition of Collateral are insufficient to cover the principal of, and
premium, if any, Additional Amounts, if any, and interest on, the Securities
plus costs and expenses of the sale or other disposition, the Company shall
remain liable for any deficiency.
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Section 16.9. Liens.
The Company represents and warrants that it has, and covenants that it
shall continue to have, full power and lawful authority to grant, release,
convey, assign, transfer, mortgage, pledge, hypothecate and otherwise create the
security interests in the Collateral as contemplated by this Indenture and the
Collateral Documents; and the Company shall warrant, preserve and defend the
interest and title of the Collateral Agent to the Collateral against the claims
of all persons and will maintain and preserve the security interests
contemplated by this Article 16.
Section 16.10. Security Interests.
(1) The Company shall deliver or cause to be delivered to the
Collateral Agent from time to time such other documentation, consents,
authorizations, approvals and orders in form and substance satisfactory to the
Collateral Agent as shall be reasonably necessary or advisable to perfect or
maintain the liens for the benefit of the Holders.
(2) The Company shall perform any and all acts and execute any
and all documents (including, without limitation, the execution, amendment of
supplementation of any financing statement and continuation statement or other
statement) for filing under the provisions of the Uniform Commercial Code and
the rules and regulations thereunder or any other statute, rule or regulation of
any applicable federal, state or local jurisdiction, which are necessary or
advisable, from time to time, in order to grant and maintain in favor of the
Collateral Agent for the benefit of the Holders and the Lenders, equally and
ratably, a valid, perfected lien on the Collateral in accordance with the
Collateral Documents.
Section 16.11. Further Assurances.
The Company will promptly execute and deliver such additional
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Article 16 and the Collateral
Documents.
Section 16.12. Notices, etc., Relating to the Collateral Documents.
In the event that the taking of any action or the occurrence of any
event hereunder is subject to any provision set forth in the Collateral
Documents, the Collateral Agent shall provide the Trustee with the results of
the instructions, consents, notices or approvals of the Lenders other than
Holders with respect to such matter received by the Collateral Agent. The
Trustee may rely on the certificate from the Collateral Agent as to the
instructions, consents, notices or approvals of the Lenders other than Holders
and such certificate shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under this Indenture upon the faith thereof.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
JABIL CIRCUIT, INC.
By
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
----------------------------------
Name:
Title:
88
<PAGE> 95
STATE OF _________)
: ss.:
COUNTY OF ________)
On the _____ day of , 2000, before me personally came _______________,
to me known, who, being by me duly sworn, did depose and say that he is a
_____________ of JABIL CIRCUIT, INC., a Delaware corporation, the person
described in and who executed the foregoing instrument, and that he signed said
instrument by authority of the Board of Directors of said Corporation.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
89
<PAGE> 96
STATE OF _________)
: ss.:
COUNTY OF ________)
On the _____ day of , 2000, before me personally came _______________,
to me known, who, being by me duly sworn, did depose and say that he is a
_____________ of THE BANK OF NEW YORK, a New York banking corporation, the
person described in and who executed the foregoing instrument, and that he
signed said instrument by authority of the Board of Directors of said
Corporation.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
90
<PAGE> 1
EXHIBIT 4.3
JABIL CIRCUIT, INC.,
Issuer,
to
THE BANK OF NEW YORK,
Trustee
---------------
INDENTURE
---------------
Dated as of _____________, 2000
Subordinated Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- -----------------
<S> <C>
ss.310(a)(1).....................................................................................................6.7
(a)(2)..........................................................................................................6.7
(b).............................................................................................................6.8
ss.312(a)........................................................................................................7.1
(b).............................................................................................................7.2
(c).............................................................................................................7.2
ss.313(a)........................................................................................................7.3
(b)(2)..........................................................................................................7.3
(c).............................................................................................................7.3
(d).............................................................................................................7.3
ss.314(a)........................................................................................................7.4
(c)(1)..........................................................................................................1.2
(c)(2)..........................................................................................................1.2
(e).............................................................................................................1.2
(f).............................................................................................................1.2
ss.316(a) (last sentence)........................................................................................1.1
(a)(1)(A).................................................................................................5.2, 5.12
(a)(1)(B)......................................................................................................5.13
(b).............................................................................................................5.8
ss.317(a)(1).....................................................................................................5.3
(a)(2)..........................................................................................................5.4
(b)............................................................................................................10.3
ss.318(a)........................................................................................................1.8
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 are a part of and govern every qualified indenture,
whether or not physically contained herein.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C>
Section 1.1. Definitions............................................................................1
Act.........................................................................................................2
Additional Amounts..........................................................................................2
Additional Provisions.......................................................................................2
Affiliate...................................................................................................2
Authenticating Agent........................................................................................2
Authorized Newspaper........................................................................................2
Authorized Officer..........................................................................................2
Bearer Security.............................................................................................2
Board of Directors..........................................................................................3
Board Resolution............................................................................................3
Business Day................................................................................................3
Capital Stock...............................................................................................3
Capitalized Lease Obligation................................................................................3
Commission..................................................................................................3
Common Stock................................................................................................3
Company.....................................................................................................3
Company Request.............................................................................................3
Company Order...............................................................................................3
Consolidated Subsidiary.....................................................................................3
Conversion Event............................................................................................4
Corporate Trust Office......................................................................................4
Corporation.................................................................................................4
Coupon......................................................................................................4
Currency....................................................................................................4
Currency Agreement..........................................................................................4
CUSIP number................................................................................................4
Defaulted Interest..........................................................................................4
Dollarsor$..................................................................................................4
Event of Default............................................................................................4
Foreign Currency............................................................................................4
Funded Debt.................................................................................................4
GAAP........................................................................................................4
Government Obligations......................................................................................5
Holder......................................................................................................5
Indebtedness................................................................................................5
Indenture...................................................................................................6
Independent Public Accountants..............................................................................6
Indexed Security............................................................................................6
Interest....................................................................................................6
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
Interest Payment Date.......................................................................................6
Judgment Currency...........................................................................................6
Lien........................................................................................................6
Maturity....................................................................................................6
New York Banking Day........................................................................................6
Office or Agency............................................................................................7
Officers' Certificate.......................................................................................7
Opinion of Counsel..........................................................................................7
Original Issue Discount Security............................................................................7
Outstanding.................................................................................................7
Paying Agent................................................................................................8
Person......................................................................................................8
Place of Payment............................................................................................8
Predecessor Security........................................................................................9
Redemption Date.............................................................................................9
Redemption Price............................................................................................9
Registered Security.........................................................................................9
Regular Record Date.........................................................................................9
Required Currency...........................................................................................9
Responsible Officer.........................................................................................9
Restricted Subsidiary.......................................................................................9
Securities Act..............................................................................................9
Securities Exchange Act.....................................................................................9
Security or Securities......................................................................................9
Security Register..........................................................................................10
Security Registrar.........................................................................................10
Senior Indebtedness........................................................................................10
Special Record Date........................................................................................10
Stated Maturity............................................................................................10
Subsidiary.................................................................................................10
Trust Indenture Act........................................................................................10
Trustee....................................................................................................10
United States..............................................................................................10
United States Alien........................................................................................10
U.S. Depository or Depository..............................................................................11
Vice President.............................................................................................11
Voting Stock...............................................................................................11
Wholly-Owned Restricted Subsidiary.........................................................................11
Section 1.2. Compliance Certificates and Opinions..................................................11
Section 1.3. Form of Documents Delivered to Trustee................................................12
Section 1.4. Acts of Holders.......................................................................12
Section 1.5. Notices, etc. to Trustee and Company..................................................14
Section 1.6. Notice to Holders of Securities; Waiver...............................................15
Section 1.7. Language of Notices...................................................................15
Section 1.8. Conflict with Trust Indenture Act.....................................................16
Section 1.9. Effect of Headings and Table of Contents..............................................16
</TABLE>
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<TABLE>
<S> <C> <C>
Section 1.10. Successors and Assigns................................................................16
Section 1.11. Separability Clause...................................................................16
Section 1.12. Benefits of Indenture.................................................................16
Section 1.13. Governing Law.........................................................................16
Section 1.14. Business Day Convention...............................................................16
Section 1.15. Counterparts..........................................................................17
Section 1.16. Judgment Currency.....................................................................17
Section 1.17. No Security Interest Created..........................................................17
Section 1.18. Limitation on Individual Liability....................................................17
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.......................................................................18
Section 2.2. Form of Trustee's Certificate of Authentication.......................................18
Section 2.3. Securities in Global Form.............................................................19
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series..................................................20
Section 3.2. Currency; Denominations...............................................................24
Section 3.3. Execution, Authentication, Delivery and Dating........................................24
Section 3.4. Temporary Securities..................................................................26
Section 3.5. Registration, Transfer and Exchange...................................................26
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities......................................30
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved..................................................31
Section 3.8. Persons Deemed Owners.................................................................32
Section 3.9. Cancellation..........................................................................33
Section 3.10. Computation of Interest...............................................................33
Section 3.11. CUSIP Numbers.........................................................................33
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge............................................................34
Section 4.2. Defeasance and Covenant Defeasance....................................................35
Section 4.3. Application of Trust Money............................................................39
ARTICLE 5
REMEDIES
Section 5.1. Events of Default.....................................................................39
Section 5.2. Acceleration of Maturity; Rescission and Annulment....................................41
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.......................42
Section 5.4. Trustee May File Proofs of Claim......................................................43
Section 5.5. Trustee May Enforce Claims without Possession of Securities or Coupons................44
</TABLE>
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<TABLE>
<S> <C> <C>
Section 5.6. Application of Money Collected........................................................44
Section 5.7. Limitations on Suits..................................................................45
Section 5.8. Unconditional Right of Holders to Receive Principal and any Premium, Interest
and Additional Amounts................................................................45
Section 5.9. Restoration of Rights and Remedies....................................................46
Section 5.10. Rights and Remedies Cumulative........................................................46
Section 5.11. Delay or Omission Not Waiver..........................................................46
Section 5.12. Control by Holders of Securities......................................................46
Section 5.13. Waiver of Past Defaults...............................................................47
Section 5.14. Waiver of Usury, Stay or Extension Laws...............................................47
Section 5.15. Undertaking for Costs.................................................................47
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.............................................................48
Section 6.2. Notice of Defaults....................................................................49
Section 6.3. Not Responsible for Recitals or Issuance of Securities................................50
Section 6.4. May Hold Securities...................................................................50
Section 6.5. Money Held in Trust...................................................................50
Section 6.6. Compensation and Reimbursement........................................................50
Section 6.7. Corporate Trustee Required; Eligibility...............................................51
Section 6.8. Resignation and Removal; Appointment of Successor.....................................52
Section 6.9. Acceptance of Appointment by Successor................................................53
Section 6.10. Merger, Conversion, Consolidation or Succession to Business...........................55
Section 6.11. Appointment of Authenticating Agent...................................................55
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.............................57
Section 7.2. Preservation of Information; Communications to Holders................................57
Section 7.3. Reports by Trustee....................................................................57
Section 7.4. Reports by Company....................................................................58
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms..................................59
Section 8.2. Successor Person Substituted for Company..............................................59
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders....................................60
Section 9.2. Supplemental Indentures with Consent of Holders.......................................61
Section 9.3. Execution of Supplemental Indentures..................................................62
Section 9.4. Effect of Supplemental Indentures.....................................................63
Section 9.5. Reference in Securities to Supplemental Indentures....................................63
</TABLE>
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<TABLE>
<S> <C> <C>
Section 9.6. Conformity with Trust Indenture Act...................................................63
Section 9.7. Effect on Senior Indebtedness.........................................................63
Section 9.8. Notice of Supplemental Indenture......................................................63
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional Amounts....................64
Section 10.2. Maintenance of Office or Agency.......................................................64
Section 10.3. Money for Securities Payments to Be Held in Trust.....................................65
Section 10.4. Additional Amounts....................................................................67
Section 10.5. Corporate Existence...................................................................67
Section 10.6. Waiver of Certain Covenants...........................................................68
Section 10.7. Company Statement as to Compliance; Notice of Certain Defaults........................68
Section 10.8. Calculation of Original Issue Discount................................................68
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article..............................................................69
Section 11.2. Election to Redeem; Notice to Trustee.................................................69
Section 11.3. Selection by Trustee of Securities to be Redeemed.....................................69
Section 11.4. Notice of Redemption..................................................................70
Section 11.5. Deposit of Redemption Price...........................................................71
Section 11.6. Securities Payable on Redemption Date.................................................71
Section 11.7. Securities Redeemed in Part...........................................................72
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article..............................................................73
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.................................73
Section 12.3. Redemption of Securities for Sinking Fund.............................................74
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article..............................................................74
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article..............................................................74
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.............................................75
Section 15.2. Call, Notice and Place of Meetings....................................................75
Section 15.3. Persons Entitled to Vote at Meetings..................................................76
</TABLE>
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<TABLE>
<S> <C> <C>
Section 15.4. Quorum; Action........................................................................76
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings...................76
Section 15.6. Counting Votes and Recording Action of Meetings.......................................77
ARTICLE 16
SUBORDINATION OF SECURITIES
Section 16.1. Agreement to Subordinate..............................................................78
Section 16.2. Default on Senior Indebtedness........................................................78
Section 16.3. Liquidation; Dissolution; Bankruptcy..................................................79
Section 16.4. Subrogation...........................................................................80
Section 16.5. Trustee to Effectuate Subordination...................................................81
Section 16.6. Notice by the Company.................................................................81
Section 16.7. Rights of the Trustee; Holders of Senior Indebtedness.................................82
Section 16.8. Subordination May Not Be Impaired.....................................................82
</TABLE>
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<PAGE> 9
INDENTURE, dated as of ______________, 2000 (the "Indenture"), between
JABIL CIRCUIT, INC., a corporation duly organized and existing under the laws
of the State of Delaware (hereinafter called the "Company"), having its
principal executive office located at 10560 Ninth Street North, St. Petersburg,
Florida 33716, and The Bank of New York, a New York banking corporation
(hereinafter called the "Trustee"), having its Corporate Trust Office located
at 101 Barclay Street, Floor 21 West, New York, NY 10286.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof and any Coupons (as herein defined)
as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(1) the terms defined in this Article, either directly or by
reference to another section hereof have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE> 10
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof," "hereto" 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; and
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both," not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act," when used with respect to any Holders, has the meaning
specified in Section 1.4.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing
to such Holders.
"Additional Provisions" has the meaning specified in Section 16.1.
"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 the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on Saturdays, Sundays, or holidays in the place of publication, and
of general circulation in each place in connection with which the term is used
or in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in
the place of publication.
"Authorized Officer" means, when used with respect to the Company, the
Chairman of the Board of Directors, a Vice Chairman, the President, any Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company.
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer.
2
<PAGE> 11
"Board of Directors" means the board of directors of the Company or
any committee of that board duly authorized to act generally or in any
particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day," with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means (i) with respect to any Person organized as a
Corporation, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) corporate stock, and (ii) with respect to any Person that is not
organized as a Corporation, the partnership, membership or other equity
interests or participations in such Person.
"Capitalized Lease Obligation" means an obligation of the lessee under
any lease that is required to be capitalized for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act or, if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Common Stock" includes any Capital Stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company.
"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, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, a Vice Chairman, the President, Executive
Vice President, Senior Vice President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Consolidated Subsidiary" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
3
<PAGE> 12
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community, or (ii) any currency unit or composite currency for the
purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at 101 Barclay Street, Floor 21 West, New York, NY 10286.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article 8, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required
to be made by or pursuant to the terms hereof or such Security and, with
respect to any other payment, deposit or transfer pursuant to or contemplated
by the terms hereof or such Security, means Dollars.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
the Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Service, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the euro, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Funded Debt" means Indebtedness created, assumed or guaranteed by a
Person for money borrowed which matures by its terms, or is renewable by the
borrower to a date, more than a year after the date of original creation,
assumption or guarantee.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time, applied on a basis consistent (except
for changes concurred in by the
4
<PAGE> 13
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other
government or governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of or other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by such
depository receipt.
"Holder," in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, means the bearer thereof and, in the case of any
Coupon, means the bearer thereof.
"Indebtedness" means (a) any liability of the Company or any
Subsidiary (1) for borrowed money, or under any reimbursement obligation
relating to a letter of credit, or (2) evidenced by a bond, note, debenture or
similar instrument, or (3) for payment obligations arising under any
conditional sale or other title retention arrangement (including a purchase
money obligation) given in connection with the acquisition of any businesses,
properties or assets of any kind, or (4) consisting of the discounted rental
stream properly classified in accordance with GAAP on the balance sheet of the
Company or any Subsidiary, as lessee, as a Capitalized Lease Obligation, or (5)
under Currency Agreements and Interest Rate Agreements, to the extent not
otherwise included in this definition; (b) any liability of others of a type
described in the preceding clause (a) to the extent that the Company or any
Subsidiary has guaranteed or is otherwise legally obligated in respect thereof;
and (c) any amendment, supplement, modification, deferral, renewal, extension
or refunding of any liability of the types referred to in clauses (a) and (b)
above. "Indebtedness" shall not be construed to include (x) trade payables or
credit on open account to trade creditors incurred in the ordinary course of
business or (y) obligations or liabilities incurred in connection with the
sale, transfer or other disposition of property in connection with the
securitization or other asset-based financing thereof; provided however that
any such sale, transfer or other disposition shall be for valid consideration
and shall not be to prefer directly or indirectly any holder of any other
obligation or Indebtedness of the Company or any Subsidiary of the Company as
to any such other obligation or Indebtedness that was already outstanding and
did not previously benefit from a Lien.
5
<PAGE> 14
"Indenture" means this instrument 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, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the
meaning of the Securities Act and the rules and regulations promulgated by the
Commission thereunder, who may be the independent public accountants regularly
retained by the Company or who may be other independent public accountants.
Such accountants or firm shall be entitled to rely upon any Opinion of Counsel
as to the interpretation of any legal matters relating to this Indenture or
certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity, and premium, if any,
interest, if any, or any Additional Amounts thereon may be determined with
reference to an index, formula or other method or methods.
"Interest," with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Judgment Currency" has the meaning specified in Section 1.16.
"Lien" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; provided that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated and any
asset which is so sold shall not be deemed subject to a Lien. Pursuant to the
indenture, a contractual grant of a right of set-off does not create a Lien in
the absence of an agreement to maintain a balance against which such right may
be exercised.
"Maturity," 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 provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
6
<PAGE> 15
"Office" or "Agency," with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for
such Securities pursuant to Section 10.2 or any other office or agency of the
Company maintained or designated for such Securities pursuant to Section 10.2
or, to the extent designated or required by Section 10.2 in lieu of such office
or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by (a) (i) the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
(ii) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, or (b) by any two of the officers listed in clause
(i) that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.
"Outstanding," when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
a. any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
b. any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 4.2) 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 reasonably satisfactory to
the Trustee has been made;
c. any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except to
the extent provided in Section 4.2;
d. any such Security which has been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
unless there shall have been presented to the Trustee proof
reasonably satisfactory to it that such
7
<PAGE> 16
Security is held by a bona fide purchaser in whose hands such
Security is a valid obligation of the Company; and
e. any such Security converted or exchanged as contemplated by
this Indenture into Common Stock of the Company or other
securities, if the terms of such Security provide for such
conversion or exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal
amount of an Original Issue Discount Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the
terms of such Original Issue Discount Security would be declared (or shall have
been declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purposes shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security, and (iv) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which shall have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee (A) the pledgee's
right so to act with respect to such Securities and (B) that the pledgee is not
the Company or any other obligor upon the Securities or any Coupons
appertaining thereto or an Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
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<PAGE> 17
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to
which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed
to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date," with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture or such Security as the "Regular
Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means, at any time, each and every Subsidiary
at least 80% (by number of votes) of the Voting Stock of which is legally and
beneficially owned by the Company and its Wholly-Owned Restricted Subsidiaries
at such time.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Securities Exchange Act" means the U.S. Securities Exchange Act of
1934, as amended.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
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<PAGE> 18
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means, with respect to the Securities of any
particular series, all Indebtedness of the Company outstanding at any time,
except (a) the Securities of such series, (b) Indebtedness as to which, by the
terms of the instrument creating or evidencing the same, it is provided that
such Indebtedness is subordinated to or pari passu with the Securities of such
series, (c) Indebtedness of the Company to an Affiliate of the Company, (d)
interest accruing after the filing of a petition initiating any proceeding
referred to in Section 5.1(7) or 5.1(8) unless such interest is an allowed
claim enforceable against the Company in a proceeding under federal or state
bankruptcy laws and (e) trade accounts payable.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity," with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto or any other Indebtedness, means the date established by or pursuant to
this Indenture or such Security or other Indebtedness as the fixed date on
which the principal of such Security or such installment of principal or
principal or interest or other Indebtedness is, or such Additional Amounts are,
due and payable.
"Subsidiary" means any Corporation, association or other business
entity of which at the time of determination the Company or one or more
Subsidiaries owns or controls more than 50% of the shares of Voting Stock.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"United States," except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign Corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
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income tax purposes, a foreign Corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository," means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act
and, if so provided with respect to any Security, any successor to such Person.
If at any time there is more than one such Person, "U.S. Depository" or
"Depository" shall mean, with respect to any Securities, the qualifying entity
which has been appointed with respect to such Securities.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "Vice President".
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, managers or trustees, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted Subsidiary 100% of all of the equity interests (except directors'
qualifying shares) and voting interests of which are owned by any one or more
of the Company and the Company's other Wholly-Owned Restricted Subsidiaries at
such time.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in 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, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents or any of them 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 individual signing such a
certificate or opinion has read such condition or covenant 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;
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<PAGE> 20
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. 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 an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe, and does
not believe, that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such 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 provided that such counsel, after reasonable inquiry,
has no reason to believe, and does not believe, 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 or any Security, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to 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, but only if, Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article 15, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
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<PAGE> 21
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or 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 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is
a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other Act, whether or not such Holders remain Holders after
such record date. No such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be valid or effective if made, given or
taken more than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination 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 reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(a) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (b)
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such Bearer Security is produced to the Trustee by some other Person, or (c)
such Bearer Security is surrendered in exchange for a Registered Security, or
(d) such Bearer Security is no longer Outstanding. The ownership, principal
amount and serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner which
the Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security 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 or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Treasurer at
the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
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Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper
in such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder 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. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. 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 by mail, then such
notification shall be made by overnight courier.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice mailed
to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the
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Company so elects, any published notice may be in an official language of the
country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto and holders of
Senior Indebtedness, any Security Registrar, any Paying Agent and any
Authenticating Agent and their respective successors hereunder and the Holders
of Securities or Coupons, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.13. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by
and construed in accordance with the laws of the State of New York applicable
to agreements made or instruments entered into and, in each case, performed in
said state.
Section 1.14. Business Day Convention.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or
exchangeable, shall be a day that is not a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture, any
Security or any Coupon other than a provision in any Security or Coupon that
specifically states that such provision shall apply in lieu hereof) payment
need not be made at such Place of Payment on such date, and such Securities
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need not be converted or exchanged on such date but such payment may be made,
and such Securities may be converted or exchanged, on the next succeeding day
that is a Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or at the Stated Maturity or Maturity
or on such last day for conversion or exchange, and no interest shall accrue on
the amount payable on such date or at such time for the period from and after
such Interest Payment Date, Stated Maturity, or Maturity or last day for
conversion or exchange, as the case may be, to such next succeeding Business
Day.
Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal
of, or premium or interest, if any, or Additional Amounts 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 requisite amount of the Required Currency
with the Judgment Currency on the New York Banking Day preceding the day on
which a final unappealable judgment is given and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any judgment (whether
or not entered in accordance with clause (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or
executive order to be closed.
Section 1.17. No Security Interest Created.
Nothing in this Indenture or in any Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
Section 1.18. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future,
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of the Company, either directly or through the Company, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Company, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any Security or
implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute,
of, and any and all such rights and claims against, every such incorporator,
shareholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any Security or
implied therefrom, are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issuance of
such Security.
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the
form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
or pursuant to this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
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.
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THE BANK OF NEW YORK,
as Trustee
By
--------------------
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in temporary or permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 3.1.
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ARTICLE 3
THE SECURITIES
Section 3.1. 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. The Securities of each series shall be
subordinated in right of payment to all Senior Indebtedness with respect to
such series as provided in Article 16.
With respect to any Securities to be authenticated and delivered
hereunder, 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,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such 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 such series
pursuant to Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part
of any Registered Security of such series pursuant to Article 13, upon
surrender in part of any Registered Security for conversion into
Common Stock of the Company or exchange for other securities pursuant
to its terms, or pursuant to or as contemplated by the terms of such
Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form
and (i) whether such Securities are to be issued in temporary or
permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for
Securities of the same series and of like tenor and of any authorized
form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section
3.5, and (iii) the name of the Depository or the U.S. Depository, as
the case may be, with respect to any such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
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(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any
clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal
of and premium, if any, on such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates,
if any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the
notice, if any, to Holders regarding the determination of interest on
a floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are
Registered Securities may be surrendered for registration of transfer
or exchange, any of such Securities may be surrendered for conversion
or exchange and notices or demands to or upon the Company in respect
of such Securities and this Indenture may be served, the extent to
which, or the manner in which, any interest payment or Additional
Amounts on a global Security on an Interest Payment Date, will be paid
and the manner in which any principal of or premium, if any, on any
global Security will be paid;
(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or analogous
provision or at the option of any Holder thereof and, if so, the date
or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities so redeemed or purchased;
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(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than
denominations of $1,000 and any integral multiple thereof, and the
denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into shares of Common Stock of the Company and/or exchangeable for
other securities, whether or not issued by the Company, and, if so,
the terms and conditions upon which such Securities will be so
convertible or exchangeable, and any deletions from or modifications
or additions to this Indenture to permit or to facilitate the issuance
of such convertible or exchangeable Securities or the administration
thereof;
(14) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion is to be
determined;
(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in
which such Securities are stated to be payable, the date or dates on
which, the period or periods within which, and the other terms and
conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency in which
such Securities are stated to be payable and the Currency in which
such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to
the terms of this Indenture to provide for or to facilitate the
issuance of Securities denominated or payable, at the election of the
Company or a Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on Dollars, one or more Foreign
Currencies, commodities, equity securities, equity indices or other
indices), and, if so, the terms and conditions upon which and the
manner in which such amounts shall be determined and paid or payable;
(18) the relative degree, if any, to which Securities of such
series shall be senior to or be subordinated to other series of
Securities or other Indebtedness of the Company in right of payment,
whether such other series of Securities or other Indebtedness is
outstanding or not;
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(19) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth
herein;
(20) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not
be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 4.2(3) relating to the
Securities of such series shall be subject to covenant defeasance, and
any deletions from, or modifications or additions to, the provisions
of Article 4 in respect of the Securities of such series;
(21) whether any of such Securities are to be issuable upon
the exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(22) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(23) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities; and
(24) any other terms of such Securities and any other
deletions from or modifications or additions to this Indenture in
respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
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Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations
of $1,000 and any integral multiple thereof, and the Bearer Securities
denominated in Dollars shall be issuable in the denomination of $5,000.
Securities not denominated in Dollars shall be issuable in such denominations
as are established with respect to such Securities in or pursuant to this
Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested by
its Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the Treasurer or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
Securities and any 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 and Coupons or did not hold such offices at the
date of original issuance 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, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for
authentication and, provided that the Board Resolution and Officers'
Certificate or supplemental indenture or indentures with respect to such
Securities referred to in Section 3.1 and a Company Order for the
authentication and delivery of such Securities have been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver, or
make available for delivery, such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the
Trustee shall be entitled to receive, and (subject to Sections 315(a) through
315(d) of the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that such Securities and Coupons, when
completed by appropriate insertions, executed under the Company's
corporate seal and attested by duly authorized officers of the
Company, delivered by duly authorized officers of the Company to the
Trustee for authentication
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pursuant to this Indenture, and 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
legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of this Indenture; such Opinion of Counsel need
express no opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have
been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officers' Certificate stating that all conditions
precedent to the execution, authentication and delivery of such
Securities and Coupons, if any, appertaining thereto, have been
complied with and that, to the best knowledge of the Persons executing
such certificate, no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
that the Trustee authenticate and deliver Securities of such series for
original issue will be deemed to be a certification by the Company that all
conditions precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the
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only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons appertaining
thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof 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 or pursuant to this
Indenture, in bearer form with one or more Coupons 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
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared
without unreasonable delay. After the preparation of definitive Securities of
the same series and containing terms and provisions that are identical to those
of any temporary Securities, such temporary Securities shall be exchangeable
for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof.
Upon surrender for cancellation of any one or more temporary Securities
(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 authorized denominations of
the same series and containing identical terms and provisions; provided,
however, that no definitive Bearer Security, except as provided in or pursuant
to this Indenture, shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in or pursuant to this Indenture. Unless otherwise
provided in or pursuant to this Indenture with respect to a temporary global
Security, 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.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of
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Securities shall have been appointed by the Company and shall have accepted
such appointment by the Company. In the event that the Trustee shall not be or
shall cease to be Security Registrar with respect to a series of Securities, it
shall have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of
Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of
a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any Office or Agency for such series, 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 and the Trustee 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 Bearer Security
shall surrender to any Paying Agent any such missing Coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for
such series located outside the United States. Notwithstanding the foregoing,
in case a Bearer Security of any series is surrendered at any such Office or
Agency for such series in exchange for a Registered Security of such 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 next succeeding Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such Office or Agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with such
Bearer Security, such Coupon shall be returned to the Person so surrendering
the Bearer Security), and interest or
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Defaulted Interest, as the case may be, shall 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 shall
be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, 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 provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, 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 in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such global Security shall be
surrendered from time to time by the U.S. Depository or such other Depository
as shall be specified in the Company Order with respect thereto, and in
accordance with instructions given to the Trustee and the U.S. Depository or
such other Depository, as the case may be (which instructions shall be in
writing but need not be contained in or accompanied by an Officers' Certificate
or be accompanied by an Opinion of Counsel), 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
as described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
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 global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any
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selection of Securities of the same series to be redeemed and ending on the
relevant Redemption Date; and provided, further, that (unless otherwise
provided in or pursuant to this Indenture) no Bearer Security delivered in
exchange for a portion of a global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such global Security shall be returned by the Trustee to such
Depository or the U.S. Depository, as the case may be, or such other Depository
or U.S. Depository 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 global Security after the close of business at the Office or
Agency for such Security where such exchange occurs on or after (i) any Regular
Record Date for such Security and before the opening of business at such Office
or Agency on the next succeeding Interest Payment Date, or (ii) any Special
Record Date for such Security and before the opening of business at such Office
or Agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall 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 shall be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such global Security shall be 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 entitling the Holders thereof 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 or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security 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, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business 15
days before the day of mailing of any notice of redemption of Securities of
like tenor and the same series under Section 11.3 and ending at the close of
business on the day of such selection, (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed, (iii) to exchange any Bearer Security so selected
for redemption except, to the extent provided with respect to such Bearer
Security, that such Bearer Security may be exchanged for a Registered Security
of like tenor and the same series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
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Section 3.6. 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, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
Coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, 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 containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
appertaining thereto corresponding to the Coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any 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 or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities
located outside the United States and, unless otherwise provided in or pursuant
to this Indenture, any interest on Bearer Securities and any Additional Amounts
with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 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 a separate obligation of the Company, whether or
not the destroyed, lost or stolen Security and Coupons appertaining thereto or
the destroyed, lost or stolen Coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
shall be exclusive and shall preclude
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(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
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 Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security,
the Special Record Date therefor 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 on or prior to the date
of the proposed payment, such money when so deposited to be held in
trust for the benefit of the Person entitled to such Defaulted
Interest as in this clause provided. The Special Record Date for the
payment of such Defaulted Interest shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after notification to the Trustee of the
proposed payment. The Trustee shall, in the name and at the expense of
the Company, cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security
(or a Predecessor Security thereof) at his address as it appears in
the Security Register not less than 10 days prior to such Special
Record Date. The Trustee shall, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper of general circulation in the Borough of
Manhattan, The City of New York, 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such
Registered Security (or a Predecessor Security thereof) shall be
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security 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 payment shall be deemed practicable by the
Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the
United States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into shares of Common Stock or exchangeable for other securities,
which Registered Security is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted or exchanged, interest with
respect to which the Stated Maturity is after the date of conversion or
exchange of such Registered Security shall not be payable.
Section 3.8. 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 in
the Security Register as the owner of such Registered Security for the purpose
of receiving payment of principal of, any premium and (subject to Sections 3.5
and 3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or 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 any payment with respect to such Security or Coupon shall
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be overdue, and none of the Company, the Trustee or any agent of the Company or
the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and Coupons, as
well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly by the Trustee. 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 cancelled
promptly 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 or pursuant to this Indenture. All cancelled Securities
and Coupons held by the Trustee shall be disposed of by the Trustee in its
customary manner, unless by a Company Order the Company directs their return to
it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in
any Security, interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers.
The Company in issuing Securities may obtain CUSIP numbers (if then
generally in use) or other identifying numbers, and, if so obtained, the
Trustee shall use such 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.
The Company will promptly notify the Trustee of any change in the CUSIP or
other identifying numbers.
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ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining thereto
(other than (i) Coupons appertaining to Bearer Securities of such
series surrendered in exchange for Registered Securities of such
series and maturing after such exchange whose surrender is not
required or has been waived as provided in Section 3.5, (ii)
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.6, (iii) Coupons appertaining to Securities of such series called
for redemption and maturing after the relevant Redemption Date whose
surrender has been waived as provided in Section 11.7, and (iv)
Securities and Coupons of such series 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 10.3) have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series and, in the case of
(i) or (ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose, money in the Currency in which such Securities
are payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including
the principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and any Coupons appertaining
thereto, to the date of such deposit (in the case of Securities which
have become due and payable) or to the Maturity thereof, as the case
may be;
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(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 and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Company and the Trustee with respect to the Securities of
such series under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the
payment of Additional Amounts, if any, with respect to such Securities as
contemplated by Section 10.4 (but only to the extent that the Additional
Amounts payable with respect to such Securities exceed the amount deposited in
respect of such Additional Amounts pursuant to Section 4.1(1)(b)), and with
respect to any rights to convert or exchange such Securities into Common Stock
or other securities shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of this
Section 4.2 shall not be applicable with respect to the Securities of such
series or (ii) covenant defeasance of the Securities of or within a series
under clause (3) of this Section 4.2 shall not be applicable with respect to
the Securities of such series, then such provisions, together with the other
provisions of this Section 4.2 (with such modifications thereto as may be
specified pursuant to Section 3.1 with respect to any Securities), shall be
applicable to such Securities and any Coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to
such Securities and any Coupons appertaining thereto, elect to have Section
4.2(2) or Section 4.2(3) be applied to such Outstanding Securities and any
Coupons appertaining thereto upon compliance with the conditions set forth
below in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable to
this Section 4.2(2) with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any Coupons appertaining thereto on
the date the conditions set forth in clause (4) of this Section 4.2 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by such Outstanding Securities and any Coupons
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appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of clause (5) of this Section 4.2 and the other Sections of
this Indenture referred to in clauses (i) and (ii) below, and to have satisfied
all of its other obligations under such Securities and any Coupons appertaining
thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and any
Coupons appertaining thereto to receive, solely from the trust fund described
in clause (4) of this Section 4.2 and as more fully set forth in such clause,
payments in respect of the principal of (and premium, if any) and interest, if
any, on, and Additional Amounts, if any, with respect to, such Securities and
any Coupons appertaining thereto when such payments are due, and any rights of
such Holder to convert such Securities into Common Stock or exchange such
Securities for other securities, (ii) the obligations of the Company and the
Trustee with respect to such Securities under Sections 3.5, 3.6, 10.2 and 10.3
and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 10.4 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a)
below), and with respect to any rights to convert such Securities into Common
Stock or exchange such Securities for other securities, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 4.2. The Company may exercise its option under this Section 4.2(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 4.2 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the option to have this
Section 4.2(3) apply with respect to any Securities of or within a series, the
Company shall be released from its obligations under any covenant applicable to
such Securities specified pursuant to Section 3.1(20), with respect to such
Outstanding Securities and any Coupons appertaining thereto on and after the
date the conditions set forth in clause (4) of this Section 4.2 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any Coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with any such covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any Coupons appertaining thereto, the Company may
omit to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 5.1(4) or 5.1(9) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto shall be unaffected thereby.
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(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 4.2 to any Outstanding Securities of or
within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.7 who shall agree to comply with the provisions of this Section 4.2
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any Coupons appertaining
thereto, (1) an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified as payable
at Stated Maturity, or (2) Government Obligations applicable to such Securities
and Coupons appertaining thereto (determined on the basis of the Currency in
which such Securities and Coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any Coupons
appertaining thereto, money in an amount, or (3) a combination thereof, in any
case, in an amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on such Outstanding
Securities and any Coupons appertaining thereto at the Stated Maturity of such
principal or installment of principal or premium or interest and (z) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any Coupons appertaining thereto on the days on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit and, with respect to defeasance only, at any time
during the period ending on the 123rd day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under clause (2) of this Section
4.2, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from the Internal Revenue Service a
letter ruling, or there has been published by the Internal Revenue Service a
Revenue Ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm
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that, the Holders of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section
4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, after the 123rd day after the date of deposit, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited or caused to be
deposited with the Trustee (or other qualifying trustee) pursuant to this
clause (4) to be held in trust will not be subject to any case or proceeding
(whether voluntary or involuntary) in respect of the Company under any Federal
or State bankruptcy, insolvency, reorganization or other similar law, or any
decree or order for relief in respect of the Company issued in connection
therewith.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance under clause (2) or (3) of
this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4),
such defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture
or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.1 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on,
and Additional Amounts, if any, with respect to, such Security as the same
becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the Currency in which such Security
becomes payable as a result of such election or Conversion Event based on (x)
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in the case of payments made pursuant to clause (a) above, the applicable
market exchange rate for such Currency in effect on the second Business Day
prior to each payment date, or (y) with respect to a Conversion Event, the
applicable market exchange rate for such Foreign Currency in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any Coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest and Additional
Amounts, if any; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
ARTICLE 5
REMEDIES
Section 5.1. Events of Default.
"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), unless such event is specifically deleted or modified in or
pursuant to the
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supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any
Security of such series, or any Additional Amounts payable with
respect thereto, when such interest becomes or such Additional Amounts
become due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of or any
premium on any Security of such series or any Additional Amounts
payable with respect thereto, when such principal or premium becomes
or such Additional Amounts become due and payable at their Maturity;
or
(3) default in the deposit of any sinking fund or
analogous payment when and as due by the terms of a Security of such
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture or the
Securities (other than a covenant or warranty a default in the
performance or the breach of which is elsewhere in this Section
specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of a 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, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities of such series, 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) there occurs with respect to any issue or issues of
Indebtedness of the Company (including an Event of Default under any
other series of Securities) or any of its Restricted Subsidiaries
having an outstanding principal amount of $50,000,000 or more in the
aggregate for all such issues of all such Persons, whether such
Indebtedness exists on the date of this Indenture or shall hereafter
be created, (a) an event of default that has caused the holder thereof
to declare such Indebtedness to be due and payable prior to its stated
maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (b) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment
shall not have been made, waived or extended within 30 days of such
payment default; or
(6) the Company or any of its Restricted Subsidiaries
shall fail within 30 days to pay, bond or otherwise discharge
uninsured judgments or court orders for the payment of money in excess
of $50,000,000 in the aggregate, which are not stayed on appeal or are
not otherwise being appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction
of:
(a) a decree or order for relief in respect of
the Company or any of its Restricted Subsidiaries in an
involuntary proceeding under any applicable bankruptcy,
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insolvency, reorganization or other similar law and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(b) a decree or order adjudging the Company or any of
its Restricted Subsidiaries to be insolvent, or approving a petition
seeking reorganization, arrangement, adjustment or composition of the
Company or any of its Restricted Subsidiaries and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other similar
official of the Company or any of its Restricted Subsidiaries or of
any substantial part of the property of the Company or any of its
Restricted Subsidiaries, as the case may be, or ordering the winding
up or liquidation of the affairs of the Company or any of its
Restricted Subsidiaries; or
(8) the commencement by the Company or any of its Restricted
Subsidiaries of a voluntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of a voluntary
proceeding seeking to be adjudicated insolvent or the consent by the
Company or any of its Restricted Subsidiaries to the entry of a decree
or order for relief in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any insolvency proceedings against it, or the filing by
the Company or any of its Restricted Subsidiaries of a petition or
answer or consent seeking reorganization, arrangement, adjustment or
composition of the Company or any of its Restricted Subsidiaries or
relief under any applicable law, or the consent by the Company or any
of its Restricted Subsidiaries to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or similar official of the Company or any
of its Restricted Subsidiaries or any substantial part of the property
of the Company or any of its Restricted Subsidiaries or the making by
the Company or any of its Restricted Subsidiaries of an assignment for
the benefit of creditors, or the taking of corporate action by the
Company or any of its Restricted Subsidiaries in furtherance of any
such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default with respect to the Company
specified in clause (7) or (8) of Section 5.1) occurs and is continuing, then
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series, or such lesser amount as may be provided for in the
Securities of such series, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or such lesser amount shall become
immediately due and payable.
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If an Event of Default with respect to the Company specified in clause
(7) or (8) of Section 5.1 occurs, all unpaid principal of and accrued interest
on and any Additional Amounts payable in respect of the Outstanding Securities
of that series (or such lesser amount as may be provided for in the Securities
of such series) shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder
of any Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum of money sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining thereto,
(b) the principal of and any premium on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon and any Additional
Amounts with respect thereto at the rate or rates borne by or provided
for in such Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments of
any interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, 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 all other amounts due the
Trustee under Section 6.6; and
(2) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of, any
premium and interest on, and any Additional Amounts with respect to
Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any Security or
any Coupon appertaining thereto
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when such 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 any premium on any Security or any Additional Amounts with respect
thereto at their Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts
at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount of money as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
all other amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and any Coupons appertaining thereto and collect the monies 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 and any Coupons appertaining thereto,
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 Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
Section 5.4. 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 of any series or the property of the Company or such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of any
applicable series, of the principal and any premium, interest and
Additional Amounts owing and unpaid in respect of the Securities
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and 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 or
counsel) and of the Holders of Securities or any Coupons appertaining
thereto allowed in such judicial proceeding, and
(2) 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 of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
Section 5.6. 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 any
premium, interest or 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 and
any predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and any Coupons for principal and any
premium, interest and Additional Amounts in respect of which or for
the benefit of which such money has been collected,
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ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and Coupons for
principal and any premium, interest and Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
such indemnity as is reasonably satisfactory to it 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
such 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 or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
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, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect
to such Security or payment of such Coupon, as the case may be, on the
respective Stated Maturity or Maturities therefor specified in such Security or
Coupon (or, in the case of redemption, on the Redemption Date or, in the case
of repayment at the option of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) and to
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institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 5.10. 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 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security or a Coupon
is intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall 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, to the extent permitted by law,
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or Coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or a Coupon may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture or with the Securities of such
series,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
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(3) such direction is not unduly prejudicial to the
rights of the other Holders of Securities of such series not joining
in such action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security
of such series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which
under Article 9 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company expressly
waives (to the extent that it may lawfully do so) all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
Section 5.15. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
any undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.15 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of 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, if any, on or Additional Amounts, if any, with respect to any
Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after
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the Redemption Date, and, in the case of repayment, on or after the date for
repayment) or for the enforcement of the right, if any, to convert or exchange
any Security into Common Stock or other securities in accordance with its
terms.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or a
Company Order (in each case, other than delivery of any Security,
together with any Coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 3.3 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or any Coupons appertaining thereto pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee such security or indemnity as is reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, coupon or other paper or
document, but the Trustee, in its discretion, may but shall not be
obligated to 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
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examine, during business hours and upon reasonable notice, the books,
records and premises of the Company, personally or by agent or
attorney, at the sole expense of the Company;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it, or any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent,
acted in bad faith or engaged in willful misconduct;
(9) the Authenticating Agent, Paying Agent, and Security
Registrar shall have the same protections as the Trustee set forth
hereunder;
(10) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with an Act of the Holders hereunder, and, to the extent
not so provided herein, with respect to any act requiring the Trustee
to exercise its own discretion, 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 or any Securities, unless it shall be proved that, in
connection with any such action taken, suffered or omitted or any such
act, the Trustee was negligent, acted in bad faith or engaged in
willful misconduct;
(11) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded; and
(12) the Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant
to Section 7.3(3), notice of such default hereunder actually known to a
Responsible Officer of the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any), or interest, if any, on, or
Additional Amounts or any sinking fund or purchase fund installment with
respect to, any Security of such series, the Trustee shall be
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protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the best interest of the Holders of Securities and Coupons of such
series; and provided, further, that in the case of any default of the character
specified in Section 5.1(5) 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 6.3. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights
it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law and shall be held uninvested. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation as shall be agreed to in writing by the Company and the
Trustee for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
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(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 or arising out of or
in connection with the acceptance or administration of the trust or
trusts hereunder (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the
Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers,
directors and employees and any predecessor Trustee for, and to hold
them harmless against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee), 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 their powers or duties hereunder,
except to the extent that any such loss, damage, claim, liability or
expense was due to the Trustee's negligence or willful misconduct.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities of
any series upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, and premium
or interest on or any Additional Amounts with respect to Securities or any
Coupons appertaining thereto.
To the extent permitted by law, any compensation or expense incurred
by the Trustee after a default specified in or pursuant to Section 5.1 is
intended to constitute an expense of administration under any then applicable
bankruptcy or insolvency law. "Trustee" for purposes of this Section 6.6 shall
include any predecessor Trustee but the negligence or willful misconduct of any
Trustee shall not affect the rights of any other Trustee under this Section
6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the
Trustee and shall apply with equal force and effect to the Trustee in its
capacity as Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that
is a Corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of
Columbia, that is eligible under Section 310(a)(1) of the Trust
Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000, and that is subject to supervision or
examination by Federal or state authority. 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.
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(2) The following indenture shall be considered specifically
described herein for purposes of clause (i) of the proviso contained in Section
310(b)(1) of the Trust Indenture Act: Indenture relating to Subordinated Debt
Securities dated as of _____, 2000 between the Company and The Bank of New York
as trustee; and pursuant to Section 310(b)(1)(C)(i) of the Trust Indenture Act,
unless otherwise ordered by the Commission, an Event of Default by the Company
under this Indenture will not disqualify the Trustee under this Indenture
because it is a trustee under such other indenture.
Section 6.8. Resignation and Removal; Appointment of Successor.
(1) 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 pursuant to Section 6.9.
(2) 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 6.9 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction, at
the expense of the Company, for the appointment of a successor Trustee
with respect to such series.
(3) 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 the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.9 shall not
have been delivered to the Trustee within 30 days after delivery of
such Act of Holders, the Trustee being removed may petition any court
of competent jurisdiction, at the expense of the Company, for the
appointment of a successor Trustee with respect to such series.
(4) If at any time:
(a) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after written
request therefor by the Company or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series
for at least six months, or
(b) the Trustee shall cease to be eligible under Section
6.7 and shall fail to resign after written request therefor by the
Company or any such Holder, or
(c) 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 or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder of a Security 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
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situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees.
(5) 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 or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of such series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.9. If,
within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of
Section 6.9, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in the
manner required by Section 6.9, any Holder of a Security 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.
(6) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Registered
Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Securities of such series are issued
as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
(7) In no event shall any retiring Trustee be liable for
the acts or omissions of any successor Trustee hereunder.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor
Trustee with respect to all Securities, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and
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 hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring
Trustee, upon payment
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of its charges, shall execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and, subject to Section 10.3, shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.6.
(2) Upon the appointment hereunder of any successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and such successor Trustee
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, such 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, 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 that no Trustee shall be
responsible for any notice given to, or received by, or any act or
failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall have no
further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates
other than as hereinafter expressly set forth, 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 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 such successor Trustee, such retiring
Trustee, upon payment of its charges with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates and subject to Section 10.3 shall duly assign,
transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates, subject to its claim, if any, provided for in Section
6.6.
(3) Upon request of any Person appointed hereunder as a
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 (1) or (2) of this Section, as the case may be.
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(4) No Person shall accept its appointment hereunder as
a successor Trustee unless at the time of such acceptance such
successor Person shall be qualified and eligible under this Article.
Section 6.10. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
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 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable
to the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, 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 must be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be a
Corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and 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 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 (i) mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. 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 each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to
each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By ,
---------------------------------------------
as Authenticating Agent
By
----------------------------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in
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accordance with this Section an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each
series, at least seven Business Days prior to each Interest Payment
Date and the Stated Maturity Date of such Securities or upon such
other dates as are set forth in or pursuant to the Board Resolution or
indenture supplemental hereto authorizing such series, a list, in each
case in such form as the Trustee may reasonably require, of the names
and addresses of Holders as of the applicable date, and
(2) 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 as of a date not more than
15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312(c) of the
Trust Indenture Act, 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 312(b) of the
Trust Indenture Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after February 15 of each year
commencing with the first February 15 following the first issuance of
Securities pursuant to Section 3.1, if required by Section 313(a) of
the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of
such February 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the
immediately preceding February 15 and the date of this Indenture.
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(2) The Trustee shall transmit the reports required by
Section 313 of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Sections
313(c) and 313(d) of the Trust Indenture Act. In addition, a copy of
each such report shall, at the time of such transmission to Holders,
be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company.
The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
Section 7.4. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) 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; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company, with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt
of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
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ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
(whether or not affiliated with the Company), or convey, transfer or lease its
property and assets as an entirety or substantially as an entirety, to any
other Person (whether or not affiliated with the Company); and the Company
shall not permit any other Person (whether or not affiliated with the Company)
to consolidate with or merge into the Company or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to any Person, the
entity formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company as an entirety
or substantially as an entirety shall be a Corporation organized and
existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, any premium and interest on
and any Additional Amounts with respect to all the Securities and the
performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed and
shall provide for conversion or exchange rights in accordance with the
provisions of the Securities of any series that are convertible or
exchangeable into Common Stock or other securities;
(2) immediately after giving effect to such transaction, and
treating any indebtedness which becomes an obligation of the Company
or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default or event which, after notice or lapse
of time, or both, would become an Event of Default, shall have
occurred and be continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease 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 8.2. Successor Person Substituted for Company
Upon any consolidation by the Company with or merger of the Company
into any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety to any Person in
accordance with Section 8.1, the successor Person
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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 a lease, the
predecessor Person shall be released from all obligations and covenants under
this Indenture, the Securities and the Coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (as shall be specified
in such supplemental indenture or indentures) or to surrender any
right or power herein conferred upon the Company;
(3) to add to or change any of the provisions of this
Indenture to facilitate the issuance of Bearer Securities or to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of,
any premium or interest on or any Additional Amounts with respect to
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
any such action shall not adversely affect the interests of the
Holders of Outstanding Securities of any series or any Coupons
appertaining thereto in any material respect;
(4) to establish the form or terms of Securities of any series
and any Coupons appertaining thereto as permitted by Sections 2.1 and
3.1;
(5) 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 6.9;
(6) to cure any ambiguity or 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 which shall
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not adversely affect the interests of the Holders of Securities of any
series then Outstanding or any Coupons appertaining thereto in any
material respect;
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth;
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture);
(9) 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
Article 4, provided that any such action shall not adversely affect
the interests of any Holder of Outstanding Securities of such series
and any Coupons appertaining thereto or any other Outstanding Security
or Coupon in any material respect;
(10) to secure the Securities;
(11) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series;
(12) to amend or supplement any provision contained herein or
in any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interests of the
Holders of any Securities then Outstanding; or
(13) to amend or supplement any provision contained herein,
provided that such amendment or supplement does not apply to any
Outstanding Securities issued prior to the date of such amendment or
supplement and entitled to the benefits of such provision.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's 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
under this Indenture or of the Securities of such series; provided, however,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts with
respect to, any Security, or reduce the principal amount thereof or
the rate (or modify the calculation of such rate) of interest thereon
or any Additional Amounts with respect thereto, or any premium payable
upon the redemption thereof or otherwise, or change the obligation of
the Company to pay Additional Amounts pursuant to Section 10.4 (except
as contemplated by Section 8.1(1)
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and permitted by Section 9.1(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 5.2 or the amount thereof provable in bankruptcy
pursuant to Section 5.4, change the redemption provisions or adversely
affect the right of repayment at the option of any Holder as
contemplated by Article 13, or change the Place of Payment, Currency
in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date or, in the case of repayment at the
option of the Holder, on or after the date for repayment),
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 15.4 for quorum or voting,
(3) modify any of the provisions of this Indenture relating to
the subordination of the Securities in a manner adverse to Holders of
Securities,
(4) modify any of the provisions of this Section, Section 5.13
or Section 10.6, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(5) make any change that adversely affects the right to
convert or exchange any Security into or for Common Stock of the
Company or other securities (whether or not issued by the Company),
cash or property in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
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 of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
receive, and (subject to Section 315 of the Trust Indenture Act) 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 and an
Officers' Certificate stating that all conditions precedent to the execution of
such supplemental indenture
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have been fulfilled. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Section 9.4. 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 a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 9.6. 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 9.7. Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify or
eliminate the provisions of Article 16 in any manner which might terminate or
impair the subordination of the Securities of any series to Senior Indebtedness
with respect to such series without the prior written consent of the holders of
such Senior Indebtedness.
Section 9.8. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
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ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of such series are listed on such exchange. 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 such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for
the purpose with respect to such Securities as provided in or pursuant to this
Indenture, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided, however,
if amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of
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principal of, any premium or interest on and any Additional Amounts with
respect to any such Security may be made at the Corporate Trust Office of the
Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or
other similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
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 shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each
series of Securities the Borough of Manhattan, The City of New York, and
initially appoints the Corporate Trust Office of the Trustee as the Office or
Agency of the Company in the Borough of Manhattan, The City of New York for
such purpose. The Company may subsequently appoint a different Office or Agency
in the Borough of Manhattan, The City of New York for the Securities of any
series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
Section 10.3. 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, it shall, on or before each due date of
the principal of, any premium or interest on or Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 3.1 for the Securities of such series) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of
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the Persons entitled thereto, 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 shall 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 shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts with respect
to Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of such series) in
the making of any payment of principal, any premium or interest on or
any Additional Amounts with respect to the Securities of such series;
and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security or any Coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall, at the request and expense of the
Company, cause to be published once, in an Authorized Newspaper in each Place
of Payment for such series or to be mailed to Holders of Registered Securities
of such series, or both, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing nor shall it be later than two years after
such principal and any premium or interest or Additional Amounts shall have
become due and payable, any unclaimed balance of such money then remaining will
be repaid to the Company.
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Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. 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 any 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 by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal 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 to the Trustee and the principal Paying Agent or Paying Agents,
if other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who
are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
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 agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. The Company covenants to
fully indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence,
bad faith or willful misconduct on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
Section 10.5. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the existence of each of its Restricted Subsidiaries and the
rights (charter and statutory) and franchises of the Company and each of its
Restricted Subsidiaries; provided, however, that the foregoing shall not
obligate the Company to preserve the existence of any of its Restricted
Subsidiaries or any such right or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not disadvantageous in any material respect
to any Holder.
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Section 10.6. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision 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 term, provision or condition shall remain in
full force and effect.
Section 10.7. Company Statement as to Compliance; Notice of
Certain Defaults.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, stating that
(a) a review of the activities of the Company during
such year and of its performance under this Indenture has been made
under his or her supervision, and
(b) to the best of his or her knowledge, based on
such review, (a) the Company has complied with all the conditions and
covenants imposed on it under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such condition
or covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(2) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or any
event which after notice or lapse of time or both would become an Event of
Default pursuant to clause (4) of Section 5.1.
Section 10.8. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
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ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of (a) less than all of the Securities of any
series or (b) all of the Securities of any series, with the same issue date,
interest rate or formula, Stated Maturity and other terms, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of
such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security
of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 of such Securities which has been or is to be
redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock or exchanged for other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted or exchanged during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
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Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to the
Holders of Securities to be redeemed. Failure to give notice by mailing in the
manner herein provided to the Holder of any Registered Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder of
such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to
be redeemed, and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and any accrued interest and
Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the 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,
(9) if Bearer Securities of any series are to be redeemed and
no Registered Securities of such series are to be redeemed, and if
such Bearer Securities may be
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exchanged for Registered Securities not subject to redemption on the
Redemption Date pursuant to Section 3.5 or otherwise, the last date,
as determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are
convertible into Common Stock of the Company or exchangeable for other
securities, the conversion or exchange price or rate, the date or
dates on which the right to convert or exchange the principal of the
Securities of such series to be redeemed will commence or terminate
and the place or places where such Securities may be surrendered for
conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Clearstream
reference numbers of such Securities, if any (or any other numbers
used by a Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 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 11.5. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York City time, on any Redemption Date,
the Company shall deposit, with respect to the Securities of any series called
for redemption pursuant to Section 11.4, 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 10.3) an amount of money in the applicable
Currency sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date, unless otherwise specified
pursuant to Section 3.1 or in the Securities of such series) any accrued
interest on and Additional Amounts with respect thereto, all such Securities or
portions thereof which are to be redeemed on that date.
Section 11.6. 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 void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section
10.2), and provided, further, that, except as otherwise specified in
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or pursuant to this Indenture or the Registered Securities of such series,
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the Regular Record Dates therefor according to their terms
and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that any interest or Additional Amounts represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an Office or Agency for such Security located outside of the United States
except as otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (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 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, containing identical terms and provisions, 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. If a Security in global form is so surrendered,
the Company shall execute, and the Trustee shall authenticate and deliver to
the U.S. Depository or other Depository for such Security in global form as
shall be specified in the Company Order with respect thereto to the Trustee,
without service charge, a new Security in global form in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Security
in global form so surrendered.
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ARTICLE 12
SINKING FUNDS
Section 12.1. 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 permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
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 such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. 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 and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any series to be made pursuant
to the terms of such Securities (1) deliver Outstanding Securities of such
series (other than any of such Securities previously called for redemption or
any of such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of 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 fund
payment shall be reduced accordingly. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
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Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory 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 delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 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 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 13.1, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated
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in the same Currency, or (ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of Security of any
particular series or pursuant to this Indenture or the Securities, any amount
in respect of any Security denominated in a Currency other than Dollars shall
be treated for any such action or distribution as that amount of Dollars that
could be obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such series (if
any) for such action, determination of rights or distribution (or, if there
shall be no applicable record date, such other date reasonably proximate to the
date of such action, determination of rights or distribution) as the Company
may specify in a written notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such place outside the United States 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 1.6, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 15.1, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed notice of or made the first publication of the notice of such meeting
within 21 days after receipt of such request (whichever shall be required
pursuant to Section 1.6) or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or,
if Securities of such series are to be issued as Bearer Securities, in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in clause (1) of this Section.
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Section 15.3. 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 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), 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 the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
9.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented
at the meeting.
Section 15.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of
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such series in regard to proof of the holding of Securities of such series and
of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 1.4 and the appointment of any
proxy shall be proved in the manner specified in Section 1.4 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.4 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 1.4 or other proof.
(2) 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 15.2(2), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 15.6. 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman
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and secretary of the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 16
SUBORDINATION OF SECURITIES
Section 16.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities issued
hereunder and under any indenture supplemental hereto or pursuant to a Board
Resolution and Officers' Certificate ("Additional Provisions"), by such
Holder's acceptance thereof, likewise covenants and agrees that all Securities
shall be issued subject to the provisions of, this Article 16; and each Holder
of a Security, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, any premium and
interest on and any Additional Amounts with respect to all Securities of each
series issued hereunder and under any Additional Provisions shall, to the
extent and in the manner hereinafter set forth, be subordinate in right of
payment to the prior payment in full of all Senior Indebtedness with respect to
such series, whether outstanding at the date of this Indenture or thereafter
incurred.
No provision of this Article 16 shall prevent the occurrence of any
default or Event of Default hereunder.
Section 16.2. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other amount due on any
Senior Indebtedness with respect to the Securities of any series, or in the
event that the maturity of any Senior Indebtedness with respect to the
Securities of any series has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, any premium or
interest on, or any Additional Amounts with respect to, the Securities of such
series.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 16.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of such Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.
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Section 16.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
with respect to the Securities of any series shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before any
payment is made by the Company on account of the principal of, premium or
interest on, or Additional Amounts with respect to, the Securities of such
series; and upon any such dissolution, winding-up, liquidation or
reorganization, or in any such bankruptcy, insolvency, receivership or other
proceeding, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
which the Holders or the Trustee would be entitled to receive from the Company,
except for the provisions of this Article 16, shall be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders or by the Trustee
under this Indenture if received by them or it, directly to the holders of such
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of such Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of the Securities of such series
or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing shall be received by
the Trustee before all such Senior Indebtedness is paid in full, or provision
is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over
or delivered to the holders of such Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all such Senior Indebtedness remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article 16, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
Corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article 16 with respect to the Securities of the relevant series to the payment
of all Senior Indebtedness with respect to the Securities of such series that
may at the time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new Corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are
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not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article 8 of this Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 16.3
if such other Person shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions stated in Article 8 of this Indenture.
Nothing in Section 16.2 or in this Section 16.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6 of this Indenture.
Section 16.4. Subrogation.
Subject to the payment in full of all Senior Indebtedness with respect
to the Securities of any series, the rights of the Holders of the Securities of
such series shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until the
principal of, any premium and interest on, and any Additional Amounts with
respect to, the Securities of such series shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
Holders or the Trustee would be entitled except for the provisions of this
Article 16, and no payment over pursuant to the provisions of this Article 16
to or for the benefit of the holders of such Senior Indebtedness by Holders of
the Securities of such series or the Trustee, shall, as between the Company,
its creditors other than holders of such Senior Indebtedness, and the Holders
of the Securities of such series, be deemed to be a payment by the Company to
or on account of such Senior Indebtedness. It is understood that the provisions
of this Article 16 are and are intended solely for the purposes of defining the
relative rights of the Holders of the Securities of each series, on the one
hand, and the holders of the Senior Indebtedness with respect to the Securities
of such series on the other hand.
Nothing contained in this Article 16 or elsewhere in this Indenture,
in any Additional Provisions or in the Securities of any series is intended to
or shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness with respect to the Securities of such series, and the
Holders of the Securities of such series, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Securities of such
series the principal of, any premium and interest on, and any Additional
Amounts with respect to, the Securities of such series as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders of the Securities of such
series and creditors of the Company, other than the holders of such Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Security of such series from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 16 of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company, as the
case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article 16, the Trustee, subject to the provisions of Article 6 of this
Indenture, and the Holders shall be entitled to conclusively rely upon any
order or decree made by any court of competent
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jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities of any series, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness with
respect to the Securities of such series and other indebtedness of the Company,
as the case may be, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 16.
Section 16.5. Trustee to Effectuate Subordination.
Each Holder of Securities, by such Holder's acceptance thereof,
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article 16 and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
Section 16.6. Notice by the Company
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities of
any series pursuant to the provisions of this Article 16. Notwithstanding the
provisions of this Article 16 or any other provision of this Indenture or any
Additional Provisions, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 16, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness with respect to the Securities of such series
or from any trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Article 6 of this Indenture,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 16.6 at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of, any premium or interest
on, or any Additional Amounts with respect to, any Security of such series),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days
prior to such date.
The Trustee, subject to the provisions of Article 6 of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
with respect to the Securities of any series (or a trustee on behalf of such
holder), to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 16, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the
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extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article 16, and, if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
Upon any payment or distribution of assets of the Company referred to
in this Article 16, the Trustee and the Holders shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of the
Securities of any series, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness with respect to the Securities of such series and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 16.
Section 16.7. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 16 in respect of any Senior Indebtedness with
respect to the Securities of any series at any time held by it, to the same
extent as any other holder of such Senior Indebtedness, and nothing in this
Indenture or any Additional Provisions shall deprive the Trustee of any of its
rights as such holder.
With respect to the holders of Senior Indebtedness with respect to the
Securities of any series, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set forth in this
Article 16, and no implied covenants or obligations with respect to the holders
of such Senior Indebtedness shall be read into this Indenture or any Additional
Provisions against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to the
provisions of Article 6 of this Indenture, the Trustee shall not be liable to
any holder of such Senior Indebtedness if it shall pay over or deliver to
Holders of the Securities of such series, the Company or any other Person money
or assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article 16 or otherwise.
Nothing in this Article 16 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.6.
Section 16.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
82
<PAGE> 91
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness with respect to the Securities of any series
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of Securities of such series, without incurring
responsibility to such Holders and without impairing or releasing the
subordination provided in this Article 16 or the obligations hereunder of the
Holders of the Securities of such series to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
* * * * *
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.
83
<PAGE> 92
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
JABIL CIRCUIT INC.
By
-----------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
-----------------------
Name:
Title:
84
<PAGE> 93
STATE OF _________)
: ss.:
COUNTY OF ________)
On the _____ day of ______, 2000, before me personally came __________,
to me known, who, being by me duly sworn, did depose and say that he is a
_____________ of JABIL CIRCUIT, INC., a Delaware corporation, the person
described in and who executed the foregoing instrument, and that he signed said
instrument by authority of the Board of Directors of said Corporation.
-------------------------------------
Notary Public
[NOTARIAL SEAL]
85
<PAGE> 94
STATE OF _________)
: ss.:
COUNTY OF ________)
On the _____ day of _______, 2000, before me personally came _________,
to me known, who, being by me duly sworn, did depose and say that he is a
_____________ of THE BANK OF NEW YORK, a New York banking corporation, the
person described in and who executed the foregoing instrument; and that he
signed said instrument by authority of the Board of Directors of said
Corporation.
----------------------------------------
Notary Public
[NOTARIAL SEAL]
86
<PAGE> 1
Exhibit 5.1
May 16, 2000
Jabil Circuit, Inc.
10560 Ninth Street North
St. Petersburg, FL 33716
RE: Jabil Circuit, Inc. - Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (No.
333-91719), including Amendment No. 1 thereto (the "Registration Statement"),
filed or to be filed by Jabil Circuit, Inc., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission in connection with the
registration pursuant to the Securities Act of 1933, as amended (the "Act"), of
the Company's debt securities (the "Debt Securities"), shares of the Company's
common stock, $0.001 par value per share (the "Common Stock"), shares of the
Company's preferred stock, $0.001 par value per share (the "Preferred Stock"),
depositary shares each representing a fraction of a share of Preferred Stock
(the "Depositary Shares"), and warrants for the purchase of Debt Securities,
Common Stock or Preferred Stock (the "Warrants"), with an aggregate offering
price of up to $750,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies. The Debt Securities, the Common Stock, the
Preferred Stock, the Depositary Shares and the Warrants are to be sold from
time to time as set forth in the Registration Statement, the Prospectus
contained therein (the "Prospectus"), the supplements to the Prospectus (the
"Prospectus Supplements"), and pursuant to one or more underwriting agreements
(each an "Underwriting Agreement"), substantially in the form filed as an
exhibit to the Registration Statement.
The Debt Securities may be either senior debt securities (the "Senior
Debt Securities") or subordinated debt securities (the "Subordinated Debt
Securities").
<PAGE> 2
Jabil Circuit, Inc.
Registration Statement on Form S-3
May 16, 2000
Page 2
The Senior Debt Securities are to be issued pursuant to a Senior Indenture,
which has been filed as an exhibit to the Registration Statement (the "Senior
Indenture"), to be entered into between the Company and The Bank of New York,
as Trustee (the "Senior Trustee"). The Subordinated Debt Securities are to be
issued pursuant to a Subordinated Indenture, which has been filed as an exhibit
to the Registration Statement (the "Subordinated Indenture", together with the
Senior Indenture, the "Indentures"), to be entered into between the Company and
The Bank of New York, as Trustee (the "Subordinated Trustee"). The Debt
Securities are to be issued in one or more forms filed with a Current Report on
Form 8-K or a Post-Effective Amendment to the Registration Statement.
This letter is governed by, and shall be interpreted in accordance
with, the Legal Opinion Accord (the "Accord") of the ABA Section of Business
Law (1991). As a consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage and other limitations, all as
more particularly described in the Accord, and this letter should be read in
conjunction therewith.
We have examined instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed (a) the authenticity of original documents
and the genuineness of all signatures, (b) the conformity to the originals of
all documents submitted to us as copies and (c) the truth, accuracy and
completeness of the information, representations and warranties contained in
the records, documents, instruments and certificates we have reviewed.
Based on such examination and subject to the foregoing exceptions,
qualifications, and limitations, we express the following opinions:
1. When the issuance of Senior Debt Securities has been duly
authorized by appropriate corporate action and the Senior Debt Securities have
been duly completed, executed, authenticated, registered and delivered in
accordance with the Senior Indenture and sold pursuant to an Underwriting
Agreement and as described in the Registration Statement, any amendment
thereto, the Prospectus and any Prospectus Supplement relating thereto, the
Senior Debt Securities will be legal, valid and binding obligations of the
Company, entitled to the benefits of the Senior Indenture.
2. When the issuance of Subordinated Debt Securities has been
duly authorized by appropriate corporate action and the Subordinated Debt
Securities have been duly completed, executed, authenticated, registered and
delivered in
<PAGE> 3
Jabil Circuit, Inc.
Registration Statement on Form S-3
May 16, 2000
Page 3
accordance with the Subordinated Indenture and sold pursuant to an Underwriting
Agreement and as described in the Registration Statement, any amendment
thereto, the Prospectus and any Prospectus Supplement relating thereto, the
Subordinated Debt Securities will be legal, valid and binding obligations of
the Company, entitled to the benefits of the Subordinated Indenture.
3. When (i) the terms of any particular series of Preferred
Stock have been established in accordance with the resolutions of the Company's
Board of Directors authorizing the issuance and sale of such series of
Preferred Stock, (ii) a Certificate of Designation conforming to the Delaware
General Corporation Law regarding such series of Preferred Stock has been filed
with the Secretary of State of the State of Delaware, and (iii) shares of such
series of Preferred Stock have been issued, sold, registered and delivered
pursuant to an Underwriting Agreement and as described in the Registration
Statement, any amendment thereto, the Prospectus and the Prospectus Supplement
relating thereto, and in accordance with the terms of the particular series as
established by the Company's Board of Directors, the shares of Preferred Stock
will be legally issued, fully paid and nonassessable.
4. When the issuance of the shares of Common Stock has been duly
authorized by appropriate corporate action, including any Common Stock that may
be issuable pursuant to the conversion of any Preferred Stock or Debt
Securities, and the shares of Common Stock have been duly issued, sold,
registered and delivered pursuant to an Underwriting Agreement and as described
in the Registration Statement, any amendment thereto, the Prospectus and any
Prospectus Supplement relating thereto, the shares of Common Stock will be
legally issued, fully paid and nonassessable.
5. When (i) the terms of the Depositary Shares have been
established in accordance with the resolutions of the Company's Board of
Directors authorizing the issuance and sale of the Depositary Shares, (ii) a
Certificate of Designation conforming to the Delaware General Corporation Law
regarding such Depositary Shares has been filed with the Secretary of State of
the State of Delaware, (iii) the applicable deposit agreement (the "Deposit
Agreement") relating to the Depositary Shares and the receipts evidencing such
Depositary Shares (the "Depositary Receipts") have been duly authorized by
appropriate corporate action and validly executed and delivered by the Company
and the applicable depositary appointed by the Company, (iv) the shares of
Preferred Stock underlying such Depositary Shares have been deposited with a
bank or trust company under the applicable Deposit Agreement, and (iv) the
Depositary Receipts representing the Depositary Shares have been duly
completed, executed, authenticated, registered and delivered in
<PAGE> 4
Jabil Circuit, Inc.
Registration Statement on Form S-3
May 16, 2000
Page 4
accordance with the applicable Deposit Agreement and sold pursuant to an
Underwriting Agreement and as described in the Registration Statement, any
amendment thereto, the Prospectus and any Prospectus Supplement relating
thereto, the Depositary Shares will be legally issued, fully paid and
non-assessable.
6. When (i) the terms of the Warrants have been established in
accordance with the resolutions of the Company's Board of Directors authorizing
the issuance and sale of the Warrants, (ii) the applicable warrant agreement
(the "Warrant Agreement") has been duly authorized by appropriate corporate
action and validly executed and delivered by the Company and the applicable
warrant agent appointed by the Company, (iii) the Warrants or certificates
representing the Warrants have been duly completed, executed, authenticated,
registered and delivered in accordance with the applicable Warrant Agreement
and sold pursuant to an Underwriting Agreement and as described in the
Registration Statement, any amendment thereto, the Prospectus and any
Prospectus Supplement relating thereto, the Warrants will be legally issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and the use of our name wherever it
appears in the Registration Statement, the Prospectus, the Prospectus
Supplement, and in any amendment or supplement thereto. In giving such consent,
we do not believe that we are "experts" within the meaning of such term used in
the Act or the rules and regulations of the Securities and Exchange Commission
issued thereunder with respect to any part of the Registration Statement,
including this opinion as an exhibit or otherwise.
Very truly yours,
/s/ HOLLAND & KNIGHT LLP
----------------------------------------
HOLLAND & KNIGHT LLP
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(dollars in thousands, except Ratio Data)
<TABLE>
<CAPTION>
SIX MONTHS
8-K 8-K 8-K 8-K 8-K ENDED
RESTATED RESTATED RESTATED RESTATED RESTATED Q2
1995 1996 1997 1998 1999 2/29/00
<S> <C> <C> <C> <C> <C> <C>
Pretax Income from operations 15,539 44,695 87,924 83,041 133,303 89,199
Fixed Charges 11,294 11,228 7,831 6,512 12,006 5,094
Interest Expense Capitalized(1) (83) -- (120) (83) -- --
-------- -------- -------- -------- -------- --------
26,750 55,923 95,635 89,470 145,309 94,293
======== ======== ======== ======== ======== ========
Fixed Charges:
Interest Expense 10,271 9,510 5,811 3,876 7,110 2,039
Capitalized Interest 83 -- 120 83 --
Interest Expense portion of
Annual rent expense(1) 940 1,718 1,900 2,553 4,896 3,055
-------- -------- -------- -------- -------- --------
Total Fixed Charges 11,294 11,228 7,831 6,512 12,006 5,094
-------- -------- -------- -------- -------- --------
Ratio of Earnings to Fixed Charges 2.37 4.98 12.21 13.74 12.10 18.51
======== ======== ======== ======== ======== ========
</TABLE>
(1) Includes an appropriate interest portion of the annual rent expense
for certain leased facilities and equipment which was deemed to be
representative of the interest factor in rent expense.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Jabil Circuit, Inc.
We consent to the incorporation herein by reference of our report dated
September 15, 1999 except as to Note 9(c), which is as of September 22, 1999,
and Note 1(n), which is as of March 23, 2000, relating to the consolidated
balance sheets of Jabil Circuit, Inc. and subsidiaries as of August 31, 1998
and 1999, and the related consolidated statements of operations, stockholders'
equity, comprehensive income and cash flows and related financial statement
schedule for each of the years in the three-year period ended August 31, 1999,
which report appears in the report on Form 8-K of Jabil Circuit, Inc., dated
May 10, 2000, and to the reference to our firm under the heading "Experts" in
the prospectus.
KPMG LLP
St. Petersburg, Florida
May 15, 2000
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Jabil Circuit, Inc.
and to the incorporation by reference therein of our report dated August 6,
1999, with respect to the consolidated financial statements of GET
Manufacturing, Inc. for the years ended March 31, 1998 and 1999 and our report
dated November 3, 1999 with respect to the consolidated financial statements of
GET Manufacturing, Inc. for the twelve months ended August 31, 1999.
Ernst & Young LLP
Hong Kong
May 8, 2000
<PAGE> 1
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
</TABLE>
---------------------------
JABIL CIRCUIT, INC.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 38-1886260
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10560 Ninth Street North 33716
St. Petersburg, Florida (Zip code)
(Address of principal executive offices)
</TABLE>
---------------------------
Senior Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
-2-
<PAGE> 3
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 9th day of May, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE> 1
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
</TABLE>
---------------------------
JABIL CIRCUIT, INC.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 38-1886260
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10560 Ninth Street North 33716
St. Petersburg, Florida (Zip code)
(Address of principal executive offices)
</TABLE>
---------------------------
Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------- ---------------------------------------
Name Address
- ---------------------------------------------------------------- ---------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
-2-
<PAGE> 3
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 9th day of May, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
---------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
