<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 4, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BLYTH INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 36-2984916
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
100 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
(203) 661-1926
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
ROBERT B. GOERGEN
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
BLYTH INDUSTRIES, INC.
100 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830-6442
(203) 661-1926
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
BRUCE D. KREIGER, ESQ. HAROLD B FINN III, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL CHARLES J. DOWNEY III, ESQ.
BLYTH INDUSTRIES, INC. FINN DIXON & HERLING LLP
100 FIELD POINT ROAD ONE LANDMARK SQUARE
GREENWICH, CONNECTICUT 06830-6442 STAMFORD, CONNECTICUT 06901
(203) 661-1926 (203) 325-5000
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities....................... $250,000,000(1) 100%(2) $250,000,000(2) $69,500
</TABLE>
(1) If any Debt Securities are issued (i) with a principal amount denominated in
a foreign currency, such principal amount as shall result in an aggregate
initial offering price that is the equivalent of U.S. $250,000,000 at the
time of initial offering, or (ii) at an original issue discount, such
greater principal amounts as shall result in an aggregate initial offering
price of $250,000,000.
(2) Estimated solely for the purpose of determining the registration fee.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
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 IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 4, 1999
[LOGO]
$250,000,000
DEBT SECURITIES
------------------------
This Prospectus describes Debt Securities which Blyth Industries, Inc.
(which may be referred to in this Prospectus as "Blyth", the "Company", "we",
"us" or "our") may issue and sell at various times. More detailed information is
provided under the heading "The Debt Securities."
- The Debt Securities may be debentures, notes or other senior unsecured
evidences of indebtedness.
- We may issue them in one or several series.
- The total principal amount of the Debt Securities to be issued under this
Prospectus will not exceed $250,000,000 (or the equivalent amount in other
currencies).
- We will determine the terms of each series of Debt Securities (interest
rates, maturity, redemption provisions and other terms) at the time of
sale, and we will specify the terms in a Prospectus Supplement which will
be delivered together with this Prospectus at the time of the sale.
- We may sell Debt Securities to or through underwriters, dealers or agents.
We may also sell Debt Securities directly to investors. More information
about the way we will distribute the Debt Securities is provided under the
heading "Distribution of the Debt Securities." Information about the
underwriters or agents who will participate in any particular sale of Debt
Securities will be in the Prospectus Supplement relating to that series of
Debt Securities. The Debt Securities will not be listed on the Nasdaq
Stock Market or any national securities exchange.
Our principal offices are located at 100 Field Point Road, Greenwich,
Connecticut, 06830-6442, and our telephone number is (203) 661-1926.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS MAY , 1999.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (which is referred to
herein as the "SEC"). You may read and copy any of these documents at the SEC's
public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public at the
SEC's Internet website at http://www.sec.gov. 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 considered to be part of this
Prospectus, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the document
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until we sell all of
the Debt Securities:
- Our Annual Report on Form 10-K for the year ended January 31, 1999.
You may receive a copy of any of these filings, at no cost, by writing or
calling Blyth Industries, Inc., Investor Relations, 100 Field Point Road,
Greenwich, Connecticut, 06830-6442, telephone number (203) 661-1926.
We have filed with the SEC a Registration Statement to register the Debt
Securities under the Securities Act of 1933. This Prospectus is part of that
Registration Statement, but omits certain information contained in the
Registration Statement as permitted by SEC rules. You may obtain copies of the
Registration Statement, including exhibits, as noted in the first paragraph
above.
FORWARD-LOOKING STATEMENTS
Certain statements under the heading "Summary Information About Blyth" in
this Prospectus, as well as certain information incorporated by reference as
described under the heading "Where You Can Find More Information," constitute
"forward-looking statements" as defined in the Private Securities Litigation
Reform Act of 1995.
Forward-looking statements give our current expectations or forecasts of
future events. You can usually identify these statements by the fact that they
do not relate strictly to historical or current facts. They often use words such
as "anticipate", "estimate", "expect", "project", "intend", "plan", "believe,"
and other words and terms of similar meaning in connection with any discussion
of future operating or financial performance. In particular, these include
statements relating to future actions, prospective products or product
approvals, future performance or results of current and anticipated products,
sales efforts, expenses, the outcome of contingencies such as legal proceedings,
and financial results.
Any or all of our forward-looking statements in this Prospectus and
information incorporated by reference may turn out to be wrong. They can be
affected by inaccurate assumptions we might make or by known or unknown risks
and uncertainties. Many factors mentioned in this discussion--for example,
product competition and the competitive environment--will be important in
determining future results. Consequently, no forward-looking statement can be
guaranteed. Actual future results may vary materially.
The following are some of the factors that we think could cause our actual
results to differ materially from expected and historical results:
- Our ability to maintain our present growth rate,
- Our ability to respond to increased product demand,
- Risks associated with international sales and foreign sourcing of
products,
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<PAGE>
- Our dependence on key management personnel,
- Competition, and
- Other factors discussed in our filings with the SEC.
Other factors besides those listed here could also adversely affect the
Company.
SUMMARY INFORMATION ABOUT BLYTH
We operate in the home fragrance products market. We are a leader in design,
manufacture, marketing and distribution of an extensive line of home fragrance
products, including scented candles, outdoor citronella candles, potpourri and
environmental fragrance products. Closely complementing these products are a
broad range of candle accessories and decorative gift bags and tags. We have
operations inside and outside the United States and sell our products worldwide.
These products are sold under various brand names through a wide variety of
distribution channels. We are also a producer of portable heating fuel and other
institutional products sold, under various brand names, both domestically and
internationally through independent sales representatives and distributors. Our
principal offices are located at 100 Field Point Road, Greenwich, Connecticut,
06830-6442 and our telephone number is (203) 661-1926. A more detailed
description of our business is contained in our Annual Report on Form 10-K for
the year ended January 31, 1999, which we have incorporated in this Prospectus
by reference.
USE OF PROCEEDS
Unless we indicate otherwise in a Prospectus Supplement which accompanies
this Prospectus, we intend to use the proceeds of the Debt Securities for
general corporate purposes. We have not allocated a specific portion of the net
proceeds of the sale of the Debt Securities for any particular use at this time.
Before we use the proceeds for any specific purpose, we may invest them in
short-term investments.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the ratio of our earnings to fixed charges for the
periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED JANUARY 31,
-----------------------------------------------------
1995 1996 1997 1998 1999
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges...................................... 16.1x 14.1x 17.6x 16.5x 15.9x
</TABLE>
We have computed these ratios by dividing earnings available for fixed
charges for each period by fixed charges for that period. For purposes of these
computations, we calculated "earnings" by adding our pre-tax income and our
fixed charges. We calculated "fixed charges" by adding the interest we pay on
our indebtedness, the amount we amortize for debt financing costs and our
estimate of the amount of the interest within our rental expense.
THE DEBT SECURITIES
The following description is a summary of certain of the material provisions
of the Indenture (as defined below) and the Debt Securities. This description
does not restate the Indenture or the terms of the Debt Securities in their
entirety. We urge you to read the Indenture because it, and not this
description, will define your rights as a holder of the Debt Securities. The
form of the Indenture is filed as an exhibit to the Registration Statement of
which this Prospectus is a part.
The following description relates generally to every series of Debt
Securities. The particular terms of any series of Debt Securities will be
described in the applicable Prospectus Supplement. If so
3
<PAGE>
indicated in the applicable Prospectus Supplement, the terms of any such series
may differ from the terms set forth below.
GENERAL
Any series of Debt Securities will be issued under an Indenture (the
"Indenture"), dated as of May , 1999, between Blyth and First Union National
Bank, as trustee (the "Trustee").
The Indenture does not limit the aggregate principal amount of all Debt
Securities or of any particular series of Debt Securities that may be issued
thereunder. The Indenture provides that Debt Securities may be issued from time
to time in one or more series, in each case with the same or various maturities,
at par or at a discount. The Indenture does not limit the amount of other debt
that we may issue and does not contain financial or similar restrictive
covenants. The Debt Securities will be direct, unsecured obligations of Blyth.
We expect from time to time to incur additional indebtedness. The Indenture
does not prohibit or limit the incurrence of additional indebtedness.
The Indenture does not contain any provision intended to provide protection
to holders of Debt Securities against a sudden or dramatic decline in our credit
quality that could, for example, result from a takeover, recapitalization,
special dividend or other restructuring.
We are a holding company and we conduct our operations through our
subsidiaries. Our only material assets are the stock of these subsidiaries. Our
cash flow, and consequently our ability to service our debts generally, and the
Debt Securities specifically, depend upon the operating earnings of these
subsidiaries and their payment of funds to us whether by dividends, loans of
otherwise. There can be no assurance that these payments will provide us with
sufficient funds to pay principal, premium, if any, and interest on the Debt
Securities.
The applicable Prospectus Supplement will describe the following terms of
the series of Debt Securities in respect of which this Prospectus is being
delivered:
- the title of such Debt Securities;
- any limit upon the aggregate principal amount of such Debt Securities and
the percentage of such principal amount at which such Debt Securities may
be issued;
- the date or dates on which the principal of such Debt Securities is
scheduled to become payable;
- the rate or rates, which may be fixed or variable, at which such Debt
Securities will bear interest, if any, or the formula by which interest
will be calculated, the date or dates from which interest will accrue, the
dates on which any such interest will be payable and the regular record
date for the interest payable on any interest payment date;
- if other than The City of New York, the place or places where the
principal of and premium, if any, and interest on Debt Securities will be
payable, any Debt Securities may be surrendered for registration of
transfer or for exchange and notices and demands in respect of the Debt
Securities may be served;
- the price or prices at which, the period or periods within which and the
terms and conditions upon which the Debt Securities may be redeemed, in
whole or in part, at the option of Blyth;
- the obligation, if any, of Blyth to redeem, purchase or repay Debt
Securities pursuant to any sinking fund or analogous provision or at the
option of the holder and the price or prices at which, the period or
periods within which and the other terms and conditions on which the Debt
Securities shall be redeemed, purchased or repaid, in whole or in part;
4
<PAGE>
- whether the Debt Securities are to be issued as fully registered
securities, bearer securities or both, and with or without coupons or
both;
- whether the Debt Securities will be issued in whole or in part in the form
of a Global Security and, in that case, the Depositary (if other than the
Depository Trust Company) for such Global Security;
- any additional covenants applicable to the Debt Securities;
- the denominations in which registered Debt Securities of the series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which bearer Debt Securities of
such series, if any, shall be issuable if other than the denomination of
$5,000;
- if other than the principal amount thereof, the portion of the principal
amount of such Debt Securities that will be payable upon declaration of
acceleration of the maturity thereof;
- the currency or currency unit of payment of principal of and premium, if
any, and interest on such Debt Securities, and any index used to determine
the amount of principal of and premium, if any, and interest on such Debt
Securities;
- if other than as set forth in the Indenture, any event of default with
respect to the Debt Securities;
- the form of the Debt Securities;
- if other than First Union National Bank, the persons who will be the
security registrar and the paying agent for the Debt Securities and the
place or places where the security register for the Debt Securities will
be maintained;
- if warrants for the Debt Securities are to be issued, the form of such
warrants, the circumstances under and the manner in which the warrants may
be exercised, and any other term or condition regarding the warrants; and
- any other terms of such Debt Securities.
PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of, and any premium and interest, if any, on Debt Securities will be
payable, and Debt Securities may be presented for registration of transfer, at
our agency or office maintained for such purpose in the Borough of Manhattan,
The City of New York. Interest may be paid at our option by check mailed to the
address of the holder entitled thereto as it appears on the applicable security
register. A holder of $10.0 million or more in aggregate principal amount of
Debt Securities of any series will be entitled to receive interest payments by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Trustee not later than ten business days
prior to the applicable interest payment date.
FORM, REGISTRATION AND TRANSFER
The Indenture provides that Debt Securities may be issued in fully
registered form or as bearer securities with coupons attached. Unless otherwise
indicated in the applicable Prospectus Supplement, Debt Securities will be
issued only in fully registered form, without coupons, in denominations of
$1,000 and any integral multiple thereof. The Indenture provides that Debt
Securities of any series may be issuable in permanent global form. See "Global
Securities". No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but we may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
5
<PAGE>
The Debt Securities may be issued as Original Issue Discount Securities (as
defined below) to be offered and sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Securities will be
described in the applicable Prospectus Supplement. "Original Issue Discount
Security" means any Debt Security that provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof in accordance with the terms of the
Indenture.
The applicable Prospectus Supplement relating to any series of Debt
Securities that are Original Issue Discount Securities will describe the
particular provisions relating to acceleration of the maturity of a portion of
the principal amount of such series of Original Issue Discount Securities upon
the occurrence of an Event of Default.
COVENANTS
In the Indenture, we have agreed:
(1) to duly and punctually pay the principal of and any premium and interest on
the Debt Securities of each series;
(2) to maintain an office where Debt Securities may be presented for payment,
for registration of transfer and for exchange, and where notices and demands
may be served;
(3) to preserve the our corporate existence, rights and franchises, unless, in
our good faith judgment, the failure to keep in full force and effect such
corporate existence, rights or franchises could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect;
(4) to pay all taxes, assessments, governmental charges or levies imposed on us
or any of our properties, assets, income or franchises that have or might
become a Lien on our properties or assets if unpaid, other than taxes,
assessments, governmental charges or levies being contested in good faith
and in appropriate proceedings for which we have established adequate
reserves or which, if unpaid, would not reasonably be expected to have a
material adverse effect;
(5) to maintain and keep our property in good repair, working order and
condition, unless we have concluded that discontinuing such maintenance
would not reasonably be expected to have a material adverse effect; and
(6) to maintain proper books of records and accounts in accordance with normal
business practice.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that neither we nor any of our subsidiaries may
consolidate with or merge into any other person or convey, transfer or lease its
respective properties and assets (determined on a consolidated basis)
substantially as an entirety to any person unless:
(1) (i) we or one of our subsidiaries is the surviving corporation or (ii) the
person formed by such consolidation or into which we or one of our
subsidiaries is merged or the person which acquires our properties and
assets is a corporation organized and existing under the laws of the United
States, any State thereof or the District of Columbia and such person
expressly assumes, by a supplemental indenture, the payment of the principal
of and any premium and interest on the Debt Securities and the performance
of our other covenants under the Indenture;
(2) immediately after giving effect to such transaction, no Event of Default,
and no event that, after notice or lapse of time or both, would become an
Event of Default, has happened and is continuing; and
(3) we deliver to the Trustee officers' certificates and opinions of counsel.
6
<PAGE>
EVENTS OF DEFAULT
An "Event of Default" is defined in the Indenture, with respect to Debt
Securities of any series issued thereunder, as:
(1) we default in the payment of any installment of interest upon any of the
Debt Securities of that series when due, and continuance of that default
for a period of 30 business days;
(2) we default in the payment of principal of or any premium on any Debt
Security of that series when due at maturity, upon redemption, by
declaration or otherwise;
(3) we default in the payment of any sinking fund installment or analogous
obligation when due in respect of Debt Securities of that series;
(4) we or any of our subsidiaries default (i) in the payment of any
principal of or premium or interest on any other indebtedness, or the
obligation to repurchase or acquire any other indebtedness, that is
outstanding in an aggregate principal amount of at least $5.0 million
beyond any period of grace provided with respect thereto or (ii) in the
performance of or compliance with any term of any evidence of any of our
other indebtedness in an aggregate outstanding principal amount of at
least $5.0 million or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of
such default or condition such other indebtedness has become, or has been
declared (or one or more persons are entitled to declare such
indebtedness to be), due and payable before its stated maturity or before
its regularly scheduled dates of payment;
(5) a final judgment or order for the payment of money in excess of $5.0
million shall be entered against us or any of our subsidiaries and such
judgment or order is not discharged or stayed within 60 days after entry
of such judgment or order;
(6) we fail to observe or perform any other of our covenants or agreements
in the Debt Securities of that series or the Indenture and continuance of
such failure for a period of 30 days after the date on which written
notice of such failure has been given by the Trustee or the holders of at
least 25% of the aggregate principal amount of the outstanding Debt
Securities of that series;
(7) certain events relating to our employee benefit plans which could
reasonably be expected to have a material adverse effect shall have
occurred;
(8) certain events of bankruptcy, insolvency or reorganization of Blyth or
any of our subsidiaries shall have occurred.
The Indenture provides that the $5.0 million amounts referred to in clauses
(4) and (5) above will increase, if the analogous provisions in our existing
Credit Facility, any subsequent or replacement committed credit facility and the
7.54% Senior Notes are amended to increase the dollar amounts referred to
therein, to the lesser of the revised amounts (but in no event more than
$20,000,000) stated in our existing Credit Facility, any subsequent or
replacement committed credit facility and the 7.54% Senior Notes as so amended.
The Indenture provides that, if any Event of Default with respect to Debt
Securities of any series at the time outstanding thereunder occurs and is
continuing, either the Trustee or the holders of at least 25% in aggregate
principal amount of the outstanding Debt Securities of that series may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all Debt Securities of that series to
be due and payable immediately. Upon certain conditions, such declaration may be
annulled and past defaults (except a default in payment of principal of or any
premium or interest on the Debt Securities of that series) may be waived by the
holders of a majority in principal amount of the outstanding Debt Securities of
that series on behalf of the holders of all Debt Securities
7
<PAGE>
of that series. In the event of the bankruptcy, insolvency or reorganization of
Blyth or any of our subsidiaries, the claims of holders of the Debt Securities
would be subject to the broad equity power of a United States Bankruptcy Court
and to the determination by that court of the nature of the rights of such
holders.
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee upon the occurrence and continuation of an Event of Default
to act with the required standard of care, to be indemnified by the holders of
any series of outstanding Debt Securities thereunder before proceeding to
exercise any right or power under the Indenture at the request of the holders of
such series of Debt Securities. The Indenture provides that the holders of a
majority in aggregate principal amount of outstanding Debt Securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or other power
conferred on the Trustee, with respect to the Debt Securities of that series.
The Trustee may decline to act if such direction is contrary to law or the
Indenture or would involve the Trustee in personal liability.
We will file annually with the Trustee a certificate as to compliance with
all conditions and covenants in the Indenture.
DEFEASANCE AND DISCHARGE
The terms of any series of Debt Securities may provide that we may terminate
certain of our obligations under the Indenture with respect such series of Debt
Securities by:
(1) depositing irrevocably with the Trustee for such series as trust funds,
in trust,
(a) in the case of Debt Securities denominated in a foreign currency,
money in such foreign currency or Foreign Government Obligations of
the foreign government or governments issuing such foreign currency,
(b) in the case of Debt Securities denominated in U.S. dollars, U.S.
dollars or U.S. Government Obligations, or
(c) a combination of money and U.S. Government Obligations or Foreign
Government Obligations, as applicable,
in each case in an amount that through the payment of principal, premium,
if any, or interest in respect thereof in accordance with their terms
will provide without reinvestment, not later than one business day before
the due date of any payment, sufficient money to pay the principal of,
premium, if any, and interest on the Debt Securities of such series as
they are due; and
(2) no Event of Default or event that, with notice or lapse of time or both
would become an Event of Default with respect to the Debt Securities of
that series shall have occurred and be continuing;
(3) we have paid all other amounts payable with respect to the Debt
Securities of that series;
(4) such deposit will not result in a breach or violation of the Indenture
or any other agreement or instrument to which we are a party; and
(5) we shall have delivered an opinion of independent counsel that the
holders of the Debt Securities of that series will have no federal income
tax consequences as a result of such deposit and termination.
Such termination will not relieve us of our obligation to pay when due the
principal of, any premium and interest on the Debt Securities of such series if
the Debt Securities of such series are not paid from the money, Foreign
Government Obligations or U.S. Government Obligations held by the Trustee.
8
<PAGE>
"U.S. Government Obligations" means securities that are direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, that, in either case, are not
callable or redeemable at the option of the issuer thereof. "Foreign Government
Obligations" means securities denominated in a foreign currency that are direct
obligations of a foreign government for the payment of which its full faith and
credit is pledged or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of a foreign government the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
such foreign government, that, in either case, are not callable or redeemable at
the option of the issuer thereof.
The applicable Prospectus Supplement will state whether any defeasance
provisions of the Indenture will apply to the Debt Securities offered thereby.
MODIFICATION AND WAIVER
Certain modifications and amendments of the Indenture may be made by Blyth
and the Trustee only with the consent of the holders of not less than a majority
in aggregate principal amount of the outstanding Debt Securities of each series
issued under such Indenture and affected by the modification or amendment. No
such modification or amendment, without the consent of the holder of each
outstanding Debt Security issued under such Indenture and affected thereby, may:
(1) change the stated maturity of the principal of, or any premium or any
installment interest on, any such Debt Security;
(2) reduce the principal amount of any such Debt Security or any premium or
interest on any such Debt Security;
(3) reduce the amount of principal payable upon acceleration of the maturity
of any Original Issue Discount Security;
(4) change the place of payment where, or the coin or currency in which, any
principal of, or any premium or interest on, any such Debt Security is
payable;
(5) impair the right to institute suit for the enforcement of any such
payment on or after its stated maturity;
(6) reduce the percentage in principal amount of outstanding Debt Securities
of any series the consent of the holders of which is necessary to modify
or amend the Indenture or waive any default or Event of Default
thereunder; or
(7) modify the foregoing requirements or reduce the percentage of aggregate
principal amount of outstanding Debt Securities of any series required to
be held by holders seeking to waive compliance with certain provisions of
the Indenture or seeking to waive certain defaults.
The holders of not less than a majority in aggregate principal amount of the
outstanding Debt Securities of any series, on behalf of the holders of all Debt
Securities of that series, may waive, insofar as that series is concerned, our
compliance with certain provisions of the Indenture. The holders of not less
than a majority in aggregate principal amount of the outstanding Debt Securities
of any series may on behalf of the holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except a
default in the payment of the principal of, or any premium or interest on, any
Debt Security of that series or in respect of a covenant or provision that under
the Indenture cannot be modified or amended without the consent of the holder of
each outstanding Debt Security issued thereunder of the series affected.
9
<PAGE>
Other modifications and amendments of the Indenture may be made by Blyth and
the Trustee without the consent of holders of the outstanding Debt Securities.
The Indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding Debt Securities issued under such
Indenture have given any request, demand, authorization, direction, notice,
consent or waiver thereunder or are present at a meeting of holders of Debt
Securities for quorum purposes:
(1) the principal amount of an Original Issue Discount Security that will be
deemed to be outstanding will be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the maturity thereof, and
(2) the principal amount of a Debt Security denominated in a foreign
currency or currency unit will be the U.S. dollar equivalent, determined
on the date of original issuance of such Debt Security, of the principal
amount of such Debt Security or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent, determined on the date of
original issuance of such Debt Security, of the amount determined as
provided in (1) above.
TITLE
Blyth, the Trustee and any agent of Blyth or the Trustee may treat the
registered owner of any Debt Security as the absolute owner thereof, whether or
not such Debt Security is overdue and notwithstanding any notice to the
contrary, for the purpose of making payment and for all other purposes.
REPLACEMENT OF DEBT SECURITIES
Any mutilated Debt Security will be replaced by us at the expense of the
holder upon surrender of such Debt Security to the Trustee. Debt Securities that
are destroyed, lost or stolen will be replaced by us at the expense of the
holder upon delivery to the Trustee of satisfactory evidence of the destruction,
loss or theft thereof. In the case of a destroyed, lost or stolen Debt Security,
an indemnity satisfactory to the Trustee and us may be required at the expense
of the holder of such Debt Security before issuance of a replacement Debt
Security.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
CONCERNING THE TRUSTEE
Any Trustee may resign or be removed with respect to one or more series of
Debt Securities and a successor Trustee may be appointed to act with respect to
such series. If two or more persons are acting as Trustee with respect to
different series of Debt Securities, each such Trustee will be a Trustee of a
trust under the Indenture separate and apart from the trust administered by any
other such Trustee. Any action described herein to be taken by the Trustee in
that circumstance may be taken by each such Trustee with respect to, and only
with respect to, the one or more series of Debt Securities for which it is
Trustee.
10
<PAGE>
BOOK-ENTRY DEBT SECURITIES
The Prospectus Supplement will indicate whether we are issuing the related
Debt Securities as book-entry securities. Book-entry securities of a series will
be issued in the form of one or more global notes that will be deposited with
The Depository Trust Company, New York, New York, and will evidence all of the
Debt Securities of that series. DTC was created to hold the securities of its
participants and to facilitate the clearance and settlement of securities
transactions among its participants through electronic book-entry changes in
accounts of the participants, thereby eliminating the need for physical movement
of securities certificates. DTC's participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations, some of whom (and/or their representatives) own DTC. Access to
DTC's book-entry system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the SEC. No fees or
costs of DTC will be charged to you.
If we issue the Debt Securities as book-entry securities, we will not issue
certificates to each holder. We will issue one or more global securities to DTC
(or its nominee), which will keep a computerized record of its participants (for
example, your broker) whose clients have purchased the Debt Securities. The
participant will then keep a record of its clients who own the Debt Securities.
Unless it is exchanged in whole or in part for a security evidenced by
individual certificates, a global security may not be transferred, except that
DTC, its nominees and their successors may transfer a global security as a whole
to one another. Beneficial interests in global securities will be shown on, and
transfers of beneficial interests in global notes will be made only through,
records maintained by DTC and its participants. Each person owning a beneficial
interest in a global security must rely on the procedures of DTC and, if the
person is not a participant, on the procedures of the participant through which
the person owns its interest to exercise any rights of a holder of Debt
Securities under the Indenture.
The laws of some jurisdictions require that certain purchasers of securities
such as Debt Securities take physical delivery of the securities in definitive
form. These limits and laws may impair your ability to acquire or transfer
beneficial interests in the global security.
We will make payments on each series of book-entry Debt Securities to DTC or
its nominee, as the sole registered owner and holder of the global security.
Neither Blyth nor the Trustee nor any of their agents will be responsible or
liable for any aspect of DTC's records relating to or payments made on account
of beneficial ownership interests in a global security or for maintaining,
supervising or reviewing any of DTC's records relating to the beneficial
ownership interests.
DTC has informed us that, when it receives any payment on a global security,
it will immediately, on its book-entry registration and transfer system, credit
the accounts of participants with payments in amounts proportionate to their
beneficial interests in the global security as shown on DTC's records. Payments
by participants to you, as an owner of a beneficial interest in the global
security, will be governed by standing instructions and customary practices (as
is now the case with securities held for customer accounts registered in "street
name") and will be the sole responsibility of the participants.
DTC has informed us that it is owned by a number of its participants and by
the New York Stock Exchange, the American Stock Exchange, and the National
Association of Securities Dealers, Inc. DTC has further informed us that it is:
- a limited-purpose trust company organized under the New York Banking Law;
- a "banking organization" within the meaning of the New York Banking Law;
- a member of the United States Federal Reserve System;
- "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
11
<PAGE>
- a "clearing agency" registered under the provisions of Section 17A of the
Securities Exchange Act.
We will provide certificated notes in definitive form in exchange for a
global note only if:
- DTC notifies us that it is unwilling or unable to continue as depositary;
- DTC ceases to be a clearing agency registered under applicable law and a
successor depositary is not appointed by us within 90 days; or
- we determine not to require all of the debt securities of a series to be
represented by a global note.
If we issue Debt Securities in definitive form in exchange for a global
security, an owner of a beneficial interest in the global security will be
entitled to have Debt Securities equal in principal amount to the beneficial
interest registered in its name and will be entitled to physical delivery of its
Debt Securities in definitive form.
DISTRIBUTION OF THE DEBT SECURITIES
GENERAL
We may sell Debt Securities to or through underwriters, to be designated
from time to time, and we also may sell Debt Securities directly to other
purchasers or through agents or broker-dealers, including broker-dealers as
principals.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
The Debt Securities will be new issues of securities with no established
trading market. We have not established whether the underwriters, if any, of the
Debt Securities will make a market in the Debt Securities. If any such
underwriters make a market in the Debt Securities, their market making may be
discontinued at any time without notice. We cannot give any assurance as to the
liquidity of any trading market for the Debt Securities.
In connection with the sale of Debt Securities, we, or purchasers of Debt
Securities for whom underwriters act as agents, may pay compensation to
underwriters, dealers and agents in the form of discounts, concessions or
commissions. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and commissions,
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation received from us will be described, in the applicable
Prospectus Supplement.
Underwriters, dealers and agents who participate in the distribution of Debt
Securities may enter into agreements with us which entitle them to be
indemnified by us against certain civil liabilities, including liabilities under
the Securities Act, or to receive contributions from us with respect to payments
that the underwriters, dealers or agents may be required to make in respect
thereof. Such underwriters, dealers or agents may engage in transactions with or
perform services for Blyth in the ordinary course of business.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as bearer securities will agree that it will
not offer, sell or deliver, directly or indirectly, bearer securities in the
United States or to United States persons (other than qualifying financial
institutions) in connection with the original issuance of such Debt Securities.
12
<PAGE>
DELAYED DELIVERY ARRANGEMENTS
If indicated in the applicable Prospectus Supplement, we will authorize
dealers or other persons acting as our agents to solicit offers by certain
institutions to purchase Debt Securities from us pursuant to contracts providing
for payment and delivery on a future date. Such contracts may be made with
institutions including commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others, but in all cases such institutions must be approved by us. Any
purchaser's obligations under any such contract will be unconditional except
that the purchase of the Debt Securities will not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The dealers and such other persons will not have any responsibility
relating to the validity or performance of such contracts.
LEGAL COUNSEL
Finn Dixon & Herling LLP, Stamford, Connecticut, as our counsel, has issued
an opinion as to the legality of the Debt Securities. As of the date hereof,
certain attorneys who are partners of, or employed by, Finn Dixon & Herling LLP,
and who have provided advice with respect to the offer and sale of the Debt
Securities, beneficially own an aggregate of 15,150 shares of Common Stock.
EXPERTS
The audited consolidated financial statements and schedule of the Company
and its subsidiaries as of January 31, 1999 and 1998 and for each of the two
fiscal years ended January 31, 1999 incorporated in this Prospectus by reference
to the Company's Annual Report on Form 10-K for the fiscal year ended January
31, 1999, have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in accounting and auditing.
The audited consolidated financial statements and schedule of the Company
and its subsidiaries for the fiscal year ended January 31, 1997, incorporated by
reference from the Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1999 into this Prospectus and elsewhere into the Registration
Statement of which this Prospectus forms a part, have been incorporated by
reference in reliance upon the reports of Grant Thornton LLP, independent
certified public accountants, and upon the authority of that firm as experts in
accounting and auditing.
13
<PAGE>
[LOGO]
$250,000,000
DEBT SECURITIES
------------------
We have not authorized anyone to give any information or to make any
representations concerning the offering of the Debt Securities except that which
is in this Prospectus or in the Prospectus Supplement which is delivered with
this Prospectus, or which is referred to under "Where You Can Find More
Information." If anyone gives or makes any other information or representation,
you should not rely on it. This Prospectus is not an offer to sell or a
solicitation of an offer to buy any securities other than the Debt Securities
which are referred to in the Prospectus Supplement. This Prospectus is not an
offer to sell or a solicitation of an offer to buy Debt Securities in any
circumstances in which the offer or solicitation is unlawful. You should not
interpret the delivery of this Prospectus, or any sale of Debt Securities, as an
indication that there has been no change in our affairs since the date of this
Prospectus. You should also be aware that information in this Prospectus may
change after this date.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Where You Can Find More Information................................................... 2
Forward Looking Statements............................................................ 2
Summary Information about Blyth....................................................... 3
Use of Proceeds....................................................................... 3
Ratio of Earnings to Fixed Charges.................................................... 3
The Debt Securities................................................................... 3
Book-Entry Debt Securities............................................................ 11
Distribution of the Debt Securities................................................... 12
Legal Counsel......................................................................... 13
Experts............................................................................... 13
</TABLE>
------------------------
MAY , 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth estimated expenses in connection with the
issuance and distribution of the securities being registered, assuming one
issuance of securities:
<TABLE>
<S> <C>
Registration Fee.................................................. $ 69,500
Printing and Engraving............................................ $ 30,000*
Trustee's Charges................................................. $ 10,300*
Accounting Fees................................................... $ 50,000*
Rating Agency Fees................................................ $ 160,000*
Legal Fees........................................................ $ 50,000*
Miscellaneous..................................................... $ 15,000*
---------
Total............................................................. $ 384,800*
</TABLE>
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law permits the indemnification by a
Delaware corporation of its directors, officers, employees and other agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than derivative
actions which are by or in the right of the corporation) if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action and requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation.
The Restated Certificate of Incorporation of Blyth contains provisions that
eliminate the personal liability of directors for monetary damages resulting
from breaches of their fiduciary duty. Directors remain liable for:
- breaches of the duty of loyalty;
- acts or omissions that are not in good faith or that involve intentional
misconduct by the directors or a knowing violation of law;
- violations of Section 174 of the Delaware General Corporation Law; or
- any transaction from which the director derived an improper personal
benefit.
Our Restated By-laws contain provisions requiring that we indemnify our
directors and officers to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law including circumstances in which
indemnification is otherwise within our discretion under Section 145. We believe
that these provisions are necessary in order to attract and retain qualified
people to serve as our directors and officers.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ------------- --------------------------------------------------------------------------------------------------
<S> <C> <C>
1. - Form of Underwriting Agreement (to be filed by amendment).
4. - Form of Indenture between the Registrant and First Union National Bank, as Trustee.
5. - Opinion and consent of Finn Dixon & Herling LLP, counsel to the Registrant.
12. - Calculation of Ratio of Earnings to Fixed Charges.
23.1 - Consent of PricewaterhouseCoopers LLP.
23.2 - Consent of Grant Thornton LLP.
23.3 - Consent of Finn Dixon & Herling LLP, counsel to the Registrant (included in Exhibit 5).
24.1 - Powers of Attorney executed by certain of the officers and directors of the Registrant.
24.2 - Certified Resolutions of the Board of Directors of the Registrant.
25. - Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of First
Union National Bank, as Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that the undertakings set forth in subparagraphs
(i) and (ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
2. That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-2
<PAGE>
4. That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the 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
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Greenwich, State of Connecticut, on May 4, 1999.
<TABLE>
<S> <C> <C>
BLYTH INDUSTRIES, INC.
By: /s/ ROBERT B. GOERGEN
-----------------------------------------
Robert B. Goergen
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND
PRESIDENT
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ ROBERT B. GOERGEN Chairman, Chief Executive May 4, 1999
- ------------------------------ Officer and President;
Robert B. Goergen Director (Principal
Executive Officer)
/s/ RICHARD T. BROWNING Vice President and Chief May 4, 1999
- ------------------------------ Financial Officer
Richard T. Browning (Principal Financial and
Accounting Officer)
* Vice Chairman and Director May 4, 1999
- ------------------------------
Howard E. Rose
* Director May 4, 1999
- ------------------------------
Roger A. Anderson
* Director May 4, 1999
- ------------------------------
John W. Burkhart
* Director May 4, 1999
- ------------------------------
Pamela M. Goergen
* Director May 4, 1999
- ------------------------------
Neal I. Goldman
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
* Director May 4, 1999
- ------------------------------
Roger H. Morley
* Director May 4, 1999
- ------------------------------
John E. Preschlack
* Director May 4, 1999
- ------------------------------
Frederick H. Stephens, Jr.
*By /s/ ROBERT B. GOERGEN
- ------------------------------
Robert B. Goergen
Attorney-in-fact
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
1. Form of Underwriting Agreement (to be filed by amendment).
4. Form of Indenture between the Registrant and First Union National Bank, as Trustee.
5. Opinion and consent of Finn Dixon & Herling LLP, counsel to the Registrant.
12. Calculation of Ratio of Earnings to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Grant Thornton LLP.
23.3 Consent of Finn Dixon & Herling LLP, counsel to the Registrant (included in Exhibit 5).
24.1. Powers of Attorney executed by certain of the officers and directors of the Registrant.
24.2. Certified resolutions of the Board of Directors of the Registrant.
25. Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of First Union
National Bank, as Trustee.
</TABLE>
<PAGE>
Exhibit 4
[SHELF INDENTURE--SENIOR DEBT]
BLYTH INDUSTRIES, INC.
to
FIRST UNION NATIONAL BANK,
Trustee
INDENTURE
REGARDING SENIOR SECURITIES
Dated as of ____________, _____
<PAGE>
Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939
and
Indenture, dated as of ____________, ____
from
BLYTH INDUSTRIES, INC.
and
FIRST UNION NATIONAL BANK, Trustee
Section of Act Section of Indenture
- -------------- --------------------
310(a)(1), (2)............................................... 5.08
310(a)(3), (4)............................................... Inapplicable
310(a)(5).................................................... 5.08
310(b)....................................................... **
310(c)....................................................... Inapplicable
311(a), (b).................................................. **
311(c)....................................................... Inapplicable
312.......................................................... **
313(a)....................................................... **
313(b)(1).................................................... Inapplicable
313(b)(2).................................................... **
313(c), (d).................................................. **
314(a)....................................................... **
314(b)....................................................... Inapplicable
314(c)(1) and (2)............................................ 15.05
314(c)(3).................................................... Inapplicable
314(d)....................................................... Inapplicable
314(e)....................................................... 15.05
314(f)....................................................... Inapplicable
315(a)(c) and (d)............................................ 5.01
315(b)....................................................... 4.08
315(e)....................................................... 4.09
316(a)(1).................................................... 4.01 and 4.07
316(a)(2).................................................... Omitted
316(a) last sentence......................................... 6.04
316(b)....................................................... 4.04
316(c)....................................................... 6.05
317(a)....................................................... 4.02
317(b)....................................................... 3.03(a)
318(a)....................................................... 15.07
- ----------
* This Reconciliation and Tie-sheet is not a part of the Indenture.
** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939.
<PAGE>
TABLE OF CONTENTS*
Page
----
Parties........................................................................1
Recitals.......................................................................1
ARTICLE ONE DEFINITIONS 5
SECTION 1.01. Definitions......................................................5
ARTICLE TWO THE SECURITIES AND SECURITY FORMS 16
SECTION 2.01. Amount Unlimited; Issuable in Series............................16
SECTION 2.02. Form of Securities and of Trustee's Certificate of
Authentication.................................................19
SECTION 2.03. Securities in Global Form.......................................20
SECTION 2.04. Denomination, Authentication and Dating of Securities...........20
SECTION 2.05. Execution of Securities.........................................24
SECTION 2.06. Exchange and Registration of Transfer of Securities.............25
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities.................29
SECTION 2.08. Temporary Securities............................................30
SECTION 2.09. Payment of Interest; Interest Rights............................32
SECTION 2.10. Cancellation of Securities Paid, etc............................34
ARTICLE THREE PARTICULAR COVENANTS OF THE COMPANY 34
SECTION 3.01. Payment of Principal and Interest...............................34
SECTION 3.02. Offices for Notices and Payments, etc...........................34
SECTION 3.03. Provisions as to Paying Agent...................................36
SECTION 3.04. Corporate Existence.............................................37
SECTION 3.05. Payment of Taxes and Other Claims...............................37
SECTION 3.06. Maintenance of Properties.......................................38
SECTION 3.07. Maintenance of Records..........................................38
SECTION 3.08. Statement as to Compliance......................................38
SECTION 3.09. Notice of Defaults..............................................39
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT 39
SECTION 4.01. Events of Default...............................................39
- ----------
* This table of contents is not part of the Indenture.
i
<PAGE>
Page
----
SECTION 4.02. Payment of Securities on Default; Suit Therefor.................43
SECTION 4.03. Application of Money Collected by Trustee.......................45
SECTION 4.04. Proceedings by Securityholders..................................46
SECTION 4.05. Proceedings by Trustee..........................................47
SECTION 4.06. Remedies Cumulative and Continuing; Delay or Omission
Not Waiver.....................................................47
SECTION 4.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders....................................48
SECTION 4.08. Notice of Defaults..............................................49
SECTION 4.09. Undertaking to Pay Costs........................................50
ARTICLE FIVE CONCERNING THE TRUSTEE 49
SECTION 5.01. Duties and Responsibilities of Trustee..........................49
SECTION 5.02. Reliance on Documents, Opinions, etc............................51
SECTION 5.03. No Responsibility for Recitals, etc.............................52
SECTION 5.04. Trustee, Paying Agents or Registrar May Own Securities..........52
SECTION 5.05. Money to Be Held in Trust.......................................53
SECTION 5.06. Compensation and Expenses of Trustee............................53
SECTION 5.07. Officers' Certificate as Evidence...............................53
SECTION 5.08. Eligibility of Trustee..........................................54
SECTION 5.09. Resignation or Removal of Trustee...............................54
SECTION 5.10. Acceptance by Successor Trustee.................................56
SECTION 5.11. Succession by Merger, etc.......................................57
ARTICLE SIX CONCERNING THE SECURITYHOLDERS 58
SECTION 6.01. Action by Securityholders.......................................58
SECTION 6.02. Proof of Execution by Securityholders...........................58
SECTION 6.03. Who Are Deemed Absolute Owners..................................59
SECTION 6.04. Company-Owned Securities Disregarded............................60
SECTION 6.05. Revocation of Consents; Future Holders Bound....................60
SECTION 6.06. Determination of Outstanding Securities.........................61
ARTICLE SEVEN SECURITYHOLDERS' MEETINGS 61
SECTION 7.01. Purposes of Meetings............................................61
SECTION 7.02. Call of Meetings by Trustee.....................................62
SECTION 7.03. Call of Meetings by Company or Securityholders..................62
SECTION 7.04. Qualifications for Voting.......................................63
SECTION 7.05. Regulations.....................................................63
SECTION 7.06. Quorum .........................................................64
SECTION 7.07. Voting .........................................................64
SECTION 7.08. No Delay of Rights by Meeting...................................65
ARTICLE EIGHT SUPPLEMENTAL INDENTURES 65
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Page
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SECTION 8.01. Supplemental Indentures Without Consent of Securityholders......65
SECTION 8.02. Supplemental Indentures with Consent of Securityholders
of a Series....................................................67
SECTION 8.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures........................................68
SECTION 8.04. Notation on Securities..........................................68
SECTION 8.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee..............................................69
ARTICLE NINE CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE 69
SECTION 9.01. Company May Consolidate, etc., on Certain Terms.................69
SECTION 9.02. Successor Corporation Substituted...............................70
ARTICLE TEN REDEMPTION OF SECURITIES 71
SECTION 10.01. Applicability of Article.......................................71
SECTION 10.02. Election to Redeem; Notice to Trustee..........................71
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed..............71
SECTION 10.04. Notice of Redemption...........................................72
SECTION 10.05. Deposit of Redemption Price....................................72
SECTION 10.06. Securities Payable on Redemption Date..........................73
SECTION 10.07. Registered Securities Redeemed in Part.........................74
ARTICLE ELEVEN SINKING FUNDS 74
SECTION 11.01. Applicability of Article.......................................74
SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities..........74
SECTION 11.03. Redemption of Securities for Sinking Fund......................75
ARTICLE TWELVE REPAYMENT AT THE OPTION OF HOLDERS 75
SECTION 12.01. Terms Set Forth in the Securities..............................75
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE OF INDENTURE 76
SECTION 13.01. Discharge of Indenture.........................................76
SECTION 13.02. Deposited Money to Be Held in Trust by Trustee.................77
SECTION 13.03. Paying Agent to Repay Money Held...............................77
SECTION 13.04. Return of Unclaimed Money......................................77
SECTION 13.05. Discharge of Indenture as to Certain Series of Securities......78
SECTION 13.06. Repayment to Company of Deposits Made Pursuant to
Section 13.05.................................................79
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SECTION 13.07. Deposits Irrevocable...........................................81
SECTION 13.08. Reinstatement..................................................81
ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS 81
SECTION 14.01. Indenture and Securities Solely Corporate Obligations..........81
ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS 82
SECTION 15.01. Provisions Binding on Company's Successors.....................82
SECTION 15.02. Official Acts by Successor Corporation.........................82
SECTION 15.03. Addresses for Notices, etc.....................................82
SECTION 15.04. Governing Law..................................................82
SECTION 15.05. Evidence of Compliance with Conditions Precedent...............83
SECTION 15.06. Legal Holidays.................................................83
SECTION 15.07. Trust Indenture Act to Control.................................83
SECTION 15.08. No Security Interest Created...................................84
SECTION 15.09. Benefits of Indenture..........................................84
SECTION 15.10. Table of Contents, Headings, etc...............................84
SECTION 15.11. Execution in Counterparts......................................84
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THIS INDENTURE, dated as of ____________, ____, is executed and
delivered from BLYTH INDUSTRIES, INC., a Delaware corporation (such corporation
or, subject to Article Nine, its successors and assigns, the "Company"), and
FIRST UNION NATIONAL BANK, a national banking association (such corporation or,
subject to Article Five, its successors and assigns as Trustee under this
Indenture, the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of Indebtedness or warrants therefor to be
issued in one or more series (the "Securities"), as provided herein.
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except to the extent the application of such definitions is expressly limited
to certain instances, and except as otherwise expressly provided in this
Indenture or unless the context otherwise requires) for all purposes of this
Indenture will have the respective meanings specified in this Section 1.01.
Except as otherwise expressly provided in this Indenture or unless the context
otherwise requires, all other terms used in this Indenture that are defined in
the Trust Indenture Act or that the Trust Indenture Act defines by reference to
the Securities Act of 1933 or by Commission rule under the Trust Indenture Act
will have the meanings assigned to such terms in the Trust Indenture Act, in
such rule thereunder or in such Securities Act as in force at the date of the
execution of this Indenture.
"Bearer Security" means any Security established pursuant to Section
2.02 that is payable to bearer.
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"Bearer Security Tax Certificate" or "Certificate of non-U.S.
Ownership", when used with respect to a Bearer Security, means a certificate
satisfying the requirements of Treasury Regulation ss. 1.163-5(c)(2)(i)(D)(3),
as that provision may be amended or redesignated from time to time, which
certificate shall be in a form approved by the Company.
"Board of Directors" means the Board of Directors of the Company or,
with respect to any matter, any committee of the Board of Directors duly
authorized to act for the Board of Directors with respect to such matter.
"Business Day", with respect to each series of Securities, means any
day other than a Saturday or Sunday that is neither a legal holiday nor a day on
which banking institutions are authorized or obligated by law or regulation to
close in either The City of New York or, with respect to Registered Notes that
will bear interest based on a specified percentage of London interbank offered
quotations ("LIBOR"), in London, England, or, in the case of Bearer Securities,
in any Place of Payment.
"Capital Leases" means, at any time, a lease with respect to which
the lessee is required concurrently to recognize the acquisition of an asset and
the incurrence of a liability in accordance with GAAP.
"CEDEL, S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to time.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture the Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the corporation identified as the Company in the
first paragraph of this Indenture until a successor corporation shall succeed to
and be substituted for the Company pursuant to the provisions of Article Nine,
and thereafter shall mean such successor corporation.
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"Company Order" means a written request or order signed in the name
of the Company by its Chairman of the Board, any Vice Chairman, its Chief
Executive Officer, its President, any Vice President and its Treasurer, any
Assistant Treasurer, its Secretary or any Assistant Secretary, and delivered to
the Trustee.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Subsidiaries" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements if such statements were
prepared as of such date.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Credit Facility" means the $140,000,000 Credit Agreement dated as
of October 17, 1997 among the Company, as borrower, Morgan Guaranty Trust
Company of New York, as documentation agent, Bank of America National Trust and
Savings Association, as administrative agent, and J.P. Morgan Securities, Inc.,
as arranger.
"Defaulted Interest" has the meaning specified in Section 2.09.
"Depositary", with respect to the Securities of any series issuable
or issued in the form of one or more Global Securities, means The Depository
Trust Company, New York, New York, or such other Person designated as Depositary
by the Company in the manner provided in Section 2.01, until a successor
Depositary shall have been appointed pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" means or includes each Person who is
then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Global Securities of any such
series means the Depositary with respect to the Securities of that series.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
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"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under Section 414 of the Code.
"Euro-clear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euro-clear System.
"Event of Default" means any event specified in Section 4.01,
continued for the period of time, if any, and after the giving of the notice, if
any, designated in Section 4.01.
"Foreign Government Obligations" has the meaning specified in
Section 13.05(b).
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
"Global Security" means a Security issued to evidence all or part of
a series of Securities in accordance with Section 2.03.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection), of such Person guaranteeing or in effect guaranteeing
any Indebtedness, dividend, or other obligation of any other Person in any
manner, whether directly or indirectly, including (without limitation)
obligations, contingent or otherwise, by such Person:
(a) to purchase or pay such Indebtedness or obligation of any other
Person or any property constituting security therefore;
(b) to advance or supply funds (i) for the purchase or payment of
such Indebtedness or obligation of any other Person, or (ii) to maintain
any working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or
obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
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(d) otherwise to assure the owner of such Indebtedness or obligation
of payment thereof or against loss in respect thereof (in whole or in
part).
In any computation of the Indebtedness or other liabilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Immaterial Subsidiary" means, at any time, any Subsidiary of the
Company having consolidated assets at such time in an amount less than 5% of
Consolidated Net Worth at such time.
"Immaterial Insolvent Subsidiary" has the meaning set forth in
Section 4.01.
"Indebtedness" with respect to any Person means, on any date of
determination, without duplication,
(a) its liabilities for the principal of, premium, if any, and
interest in respect of indebtedness of such Person for borrowed money;
(b) its liabilities for the principal of, premium, if any, and
interest in respect of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(c) its redemption obligations in respect of mandatorily redeemable
Preferred Stock;
(d) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including all liabilities created or
arising under any conditional sale or other title retention agreement with
respect to any such property);
(e) all liabilities appearing on its balance sheet in accordance
with GAAP in respect of Capital Leases;
(f) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities);
(g) all its liabilities in respect of letters of credit or
instruments serving a similar function (including reimbursement
obligations with respect
9
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thereto) issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed money);
(h) Swaps of such Person; and
(i) any Guaranty of such Person with respect to liabilities of a
type described in any clauses (a) through (h) hereof.
Indebtedness of any such Person shall include all obligations of such Person of
the character described in clauses (a) through (i) to the extent such Person
remains legally liable in respect thereof not withstanding that any such
obligation is deemed to be extinguished under GAAP.
"Indenture" means this instrument as originally executed or, if
amended or supplemented as provided in this Indenture, as so amended or
supplemented.
"interest", when used with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Indenture and the Securities or (c) the
validity or enforceability of this Indenture or the Securities.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by the declaration of
acceleration, call for redemption, repayment at the option of the holder or
otherwise.
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"Multiemployer Plan" means any Plan that is a "multiemployer plan"
(as such term is defined in Section 4001(a)(3) of ERISA.
"Note Purchase Agreements" means the Note Purchase Agreements each
dated July 7, 1995 between Candle Corporation Worldwide, Inc., a Delaware
corporation, Candle Corporation of America, a New York corporation, PartyLite
Gifts, Inc. , a Delaware corporation, the Company and each of the institutions
which is a signatory thereto, as amended, under which the Company's 7.54% Senior
Notes due June 30, 2005 were issued.
"Officers' Certificate", when used with respect to the Company,
means a certificate signed by the Chairman of the Board, any Vice Chairman, the
Chief Executive Officer, the President, any Vice President and by the Treasurer,
any Assistant Treasurer, the Secretary or any Assistant Secretary of the
Company. Except as otherwise provided in this Indenture, each such certificate
shall include the statements provided for in Section 15.05.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, and who shall be
acceptable to the Trustee. Except as otherwise provided in this Indenture, each
such opinion shall include the statements provided for in Section 15.05.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 4.01.
The term "principal amount" or "aggregate principal amount", when used with
respect to Original Issue Discount Securities, has the meaning (or meanings)
specified in the manner contemplated by Section 2.01 for purposes of:
determining the amount due and payable in the event of an acceleration of
Maturity as provided in Section 4.01; and the redemption provisions in Article
Ten.
"Outstanding", when used with reference to Securities of any series
or the related coupons, subject to the provisions of Section 6.04, means, as of
any particular time, all Securities of such series or any related coupons
authenticated and delivered by the Trustee pursuant to this Indenture, except:
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(a) such Securities and coupons theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) such Securities and coupons, or portions thereof, for the
payment or redemption of which money in the necessary amount shall have
been deposited in trust with the Trustee or with any Paying Agent (other
than the Company) or shall have been set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent), provided
that if such Securities are to be redeemed prior to the Maturity thereof,
notice of such redemption shall have been provided as specified in Article
Eleven, or provision satisfactory to the Trustee shall have been made for
mailing such notice; and
(c) such Securities or coupons in lieu of or in substitution for
which other Securities or coupons shall have been authenticated and
delivered pursuant to the terms of Section 2.07, except to the extent that
a bona fide holder in due course of any such Securities shall have
presented proof satisfactory to the Trustee that such holder is a bona
fide holder in due course of any such Securities or coupons.
"Paying Agent", when used with respect to Securities of any series,
means any Person authorized by the Company to pay the principal of and any
premium or interest on any Securities of that series on behalf of the Company.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Place of Payment" has the meaning stated in Section 2.01(5).
"Plan" means an "employee benefit plan" (as defined in Section 3(3)
of ERISA) that is or, within the proceeding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any of its ERISA
Affiliates or with respect to which the Company or any of its ERISA Affiliates
may have any liability.
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"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt that was
evidenced by such particular Security. For the purposes of this definition, any
Security authenticated and delivered under Section 2.07 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of any amount upon liquidation or dissolution of such
corporation.
"principal office of the Trustee" or any other similar term means
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office, at the date of
this Indenture, is located at 40 Broad Street, 5th floor, Suite 550, New York,
New York 10004..
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security, in the form of registered
securities established pursuant to Section 2.02, that is registered in the
Security Register.
"Regular Record Date", with respect to the interest payable on any
Interest Payment Date on the Securities of any series, means the date specified
for that purpose as contemplated by Section 2.01.
"Responsible Officer", when used with respect to the Trustee, means
the Chairman or Vice Chairman of its board of directors, the Chairman or Vice
Chairman of the executive committee of the board of directors, the President,
any Vice President, the Cashier, any Assistant Cashier, any senior trust
officer, any trust officer, any assistant trust officer or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be the above-named
officers, or to whom any corporate trust matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
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"Security" or "Securities" has the meaning stated in the recitals of
this Indenture and means any Security or Securities, as the case may be,
authenticated and delivered pursuant to this Indenture. Whenever this Indenture
refers to any interest on or with respect to any Security that is represented by
a coupon, such reference to the Security also shall include reference to a
coupon.
"Security Register", when used with respect to a Registered
Security, has the meaning specified in Section 2.06(b).
"Securityholder", "holder of Securities", "holder" or other similar
term, when used with respect to a Registered Security, means any Person in whose
name at the time a particular Registered Security is registered on the Security
Register and, when used with respect to a Bearer Security or coupon, the bearer
thereof.
"Special Record Date" has the meaning specified in Section 2.09.
"Stated Maturity", when used with respect to any Security or any
payment of premium or any installment of interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such payment of
premium or such installment of interest is due and payable.
"Subsidiary" means, as to any Person, any corporation, association
or other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture of which
more than 50% of the interests in the profits or capital thereof is owned by
such Person or one or more of its Subsidiaries or such Person and one or more of
its Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries).
"Swaps" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Indenture, the amount of
the obligation under any Swap shall be the amount
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determined in respect thereof as of the end of the then most recently ended
fiscal quarter of such Person, based on the assumptions that such Swap had
terminated at the end of such fiscal quarter, and in making such determination,
if any agreement relating to such Swap provides for the netting of amounts
payable by and to such person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount so determined.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as it
was in force at the date of execution of this Indenture, except as provided in
Section 8.03.
"Trustee" means the Person identified as the Trustee in the first
paragraph of this Indenture until a successor shall succeed to the trusts
created by this Indenture pursuant to the provisions of Article Five, and
thereafter shall mean such successor.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
"U.S. dollars," and "$" means the lawful currency from time to time
of the United States of America.
"U.S. Government Obligations" has the meaning specified in Section
13.05(b).
"Vice President", when used with respect to the Company or the
Trustee, means any such officer whether or not designated by a number or a word
or words added before or after such title.
"Voting Stock" of a corporation or other entity means stock of the
class or classes having general voting power in an election of the board of
directors, managers or trustees of such corporation or other entity
(irrespective of whether, at the time, stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means, at any time, with respect to any
Person, any Subsidiary of such Person one hundred percent (100%) of all of the
equity interests (except directors' qualifying shares) and voting interests of
which are owned by any one or more of such Person and such Person's other
Wholly-Owned Subsidiaries.
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ARTICLE TWO
THE SECURITIES AND SECURITY FORMS
SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. Securities may be issued in one or more series.
The terms and conditions listed below, as applicable, of any series
of Securities shall be established either in an indenture supplemental hereto or
in or pursuant to a resolution of the Board of Directors:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, other
Securities of the series pursuant to Section 2.05, 2.06, 2.07, 8.04 or
10.07);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, if any, or the
formula by which interest shall be calculated by the Company or an agent
designated for such purpose, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Registered Security on any Interest Payment Date;
(5) the place or places, if any, in addition to those
specified herein, where the principal of and any premium or interest on
Securities of the series shall be payable (the "Place of Payment"), any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served and where notices to holders
pursuant to this Indenture will be published;
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(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company, pursuant
to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof and the price or
prices at which, the period or periods within which and the other terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation,
which in the case of Securities of any series that are repayable at the
option of a holder thereof shall be set forth in the form of such
Security;
(8) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of
the series are to be issuable with or without coupons or both and, in the
case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Security of such series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary (if other than The Depository Trust Company) for
such Global Security or Securities and whether such global form shall be
permanent or temporary;
(10) if Securities of the series are to be issuable initially
in the form of one or more temporary Global Securities, the circumstances
under and the manner in which such temporary Global Securities can be
exchanged for definitive Securities of the series and whether such
definitive Securities will be Registered Securities, Bearer Securities or
both and will be in global form;
(11) any additional covenants applicable to such Securities;
(12) the denominations in which Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer
Securities of such series, if any, shall be issuable if other than the
denomination of $5,000;
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(13) if other than the principal amount thereof, the portion
of the principal amount of such Securities that will be payable upon
declaration of acceleration of the maturity thereof;
(14) the currency or currency unit of payment of principal of
and premium, if any, and interest on such Securities, and any index used
to determine the amount of principal of or premium, if any, and interest
on such Securities;
(15) any Event of Default with respect to the Securities of
such series, if not set forth herein or if different from those set forth
herein;
(16) the form of Securities of the series;
(17) the Person or Persons who shall be Security registrar for
the Securities of such series if other than as provided for in this
Indenture, and the place or places where the Security Register for such
series shall be maintained and the Person or Persons who will be the
initial Paying Agent or Agents, if other than as provided for in this
Indenture;
(18) if warrants for Securities of any series are to be
issued, the form in which the warrants shall be issued, the circumstances
under and the manner in which the warrants may be exercised, any
obligation of the Company concerning any Securities underlying the
warrants and any other terms or conditions regarding the warrants and any
Securities underlying the warrants; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any series and the coupons appertaining to Bearer
Securities of such series, if any, issued under this Indenture in all respects
shall be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of actual
time or times of authentication and delivery or Maturity of the Securities of
such series. All Securities of the same series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except as to denomination and except as may otherwise be provided either in an
indenture supplemental hereto or a resolution of the Board of Directors.
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SECTION 2.02. Form of Securities and of Trustee's Certificate of
Authentication. The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series and the certificates of authentication
on the Securities shall be in substantially the form as shall be established as
provided in Section 2.01 with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may be determined consistently herewith by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If the form of Securities of any series or coupons
(including any Global Security) is established by action taken pursuant to a
resolution of the Board of Directors, a copy of an appropriate record of such
action shall be certified by the Secretary or any Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect as of the date of such certificate, and shall be delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 2.04(b) or the authentication and delivery of such Securities.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons.
The form of Trustee's certificate of authentication for all
Securities shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the
within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By
------------------------------
Authorized Signatory
SECTION 2.03. Securities in Global Form. (a) If Securities of a
series are issuable in whole or in part in
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global form, as specified in the manner contemplated by Section 2.01, then,
notwithstanding the provisions of clause (11) of Section 2.01 or Section 2.04,
such Global Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby from
time to time may be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Global Security or in the Company Order to be delivered to the Trustee pursuant
to Section 2.04(b).
(b) The provisions of the last sentence of Section 2.05(b) shall
apply to any Securities represented by a Global Security if such Securities were
never issued and sold by the Company (whether because of failure of settlement
or otherwise) and the Company delivers to the Trustee the Global Security
together with written instructions with regard to the reduction in the principal
amount of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 2.05(b), notwithstanding the
absence of delivery of such Securities as contemplated thereby.
(c) Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form.
SECTION 2.04. Denomination, Authentication and Dating of Securities.
(a) Securities of each series shall be issuable in such form and denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 2.02. In the absence of any specification, as
provided in Section 2.01, with respect to the Securities of any series, the
Registered Securities of such series, if any, shall be issuable in denominations
of $1,000 and any integral multiple thereof and the Bearer Securities of such
series, if any, shall be issuable in the denomination of $5,000. Each Registered
Security shall be dated as of the date of its authentication. Each Bearer
Security shall be dated as of the date specified in the manner contemplated by
Section 2.01.
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication. Except as otherwise
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provided in this Article Two, the Trustee thereupon shall authenticate and
deliver such Securities in accordance with a Company Order; provided, however,
that in connection with its original issuance a Bearer Security may be delivered
only outside the United States and, except in the case of a temporary Global
Security, only if the Trustee, the Company or its agent shall have received from
the Person entitled to receive the Bearer Security a Bearer Security Tax
Certificate and only if the Company and the Trustee have no reason to know that
such certificate is false.
(c) To the extent authorized in or pursuant to a resolution of the
Board of Directors or established in an indenture supplemental hereto, such
Company Order may be electronically transmitted and may provide instructions as
to registration of holders, principal amounts, rates of interest, Stated
Maturities and other matters contemplated by such resolution of the Board of
Directors or supplemental indenture to be so instructed in respect thereof.
(d) In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and, subject to Section 5.01, shall be
fully protected in relying upon:
(i) a copy of the resolution or resolutions of the Board of
Directors in or pursuant to which the terms and form of the Securities
were established, 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 as of the date of such certificate;
(ii) an executed supplemental indenture, if any;
(iii) an Officers' Certificate delivered in accordance with
Section 15.05; and
(iv) an Opinion of Counsel to the effect that:
(A) the form of such Securities and coupons, if any, has
been established by a supplemental indenture or by or pursuant to a
resolution of the Board of Directors in accordance with Sections
2.01 and 2.02 and in conformity with the provisions of this
Indenture;
(B) the terms of such Securities and coupons, if any,
have been established in
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accordance with Section 2.01 and in conformity with the other
provisions of this Indenture;
(C) such Securities, when authenticated and delivered by
the Trustee and issued (with coupons attached, if applicable) by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(D) all conditions precedent, if any, provided for in
this Indenture have been complied with; and
(E) the execution and delivery by the Company of such
Securities and coupons, if any, do not conflict with any law,
administrative regulation or court decree applicable to the Company.
(e) If the Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee, in
accordance with this Section 2.04 and the Company Order with respect to such
series, shall authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instruction.
(f) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.04 if the Trustee in good faith
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee or a trust
committee of directors or trustees or vice presidents shall determine that such
action would expose the Trustee to personal liability to existing holders.
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<PAGE>
(g) Notwithstanding any contrary provision herein, if all Securities
of a series are not to be originally issued at one time, it shall not be
necessary for the Company to deliver to the Trustee a Company Order, Officers'
Certificate, resolution of the Board of Directors, supplemental indenture or
Opinion of Counsel otherwise required pursuant to Section 2.04(b) or Section
2.04(d) at or prior to the time of authentication of each Security of such
series if such documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first Security of such
series to be issued. In such event, any subsequent request by the Company to the
Trustee to authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as of the date of
such request, the statements made in the Officers' Certificate or other
certificates delivered pursuant to Section 2.04(d) are true and correct as if
made on such date. A Company Order, Officers' Certificate, resolution of the
Board of Directors or supplemental indenture delivered by the Company to the
Trustee in the circumstances set forth in this Section 2.04(g) may provide that
Securities that are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time in the aggregate
principal amount established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic, electronic or written order of persons designated in such
Company Order, supplemental indenture or resolution of the Board of Directors
(any such telephonic or electronic instructions to be promptly confirmed in
writing by such persons) and that such persons are authorized to determine,
consistent with such Company Order, supplemental indenture or resolution of the
Board of Directors, such terms and conditions of said Securities as are
specified in such Company Order, supplemental indenture or resolution of the
Board of Directors.
(h) Each Depositary designated pursuant to clause (9) of Section
2.01 for a Global Security in registered form, at the time of its designation
and at all times while it serves as Depositary, shall be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
SECTION 2.05. Execution of Securities. (a) The Securities and the
related coupons shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board, its Chief Executive
Officer or its President or, in lieu thereof, of any Vice President or its
Treasurer and attested by its Secretary or any Assistant Secretary, under its
corporate seal (which may
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be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise). For the purpose of any such signature or attestation, the Company
may adopt and use the facsimile signature of any person who has been or is or
shall be such officer.
(b) No Security or appurtenant coupon shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose unless such
security bears thereon a certificate of authentication substantially in the form
set forth in Section 2.02, manually executed by an authorized signatory of the
Trustee. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered under this Indenture. Except as permitted by
Section 2.07, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled. Notwithstanding the foregoing, if any Security or portions thereof
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company (whether because of failure of settlement or otherwise), and
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement stating that such
Security or portion thereof has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
(c) In case any officer of the Company whose manual or facsimile
signature appears on any of the Securities or coupons shall cease to be such
officer before the Securities or coupons so signed shall have been authenticated
and delivered by the Trustee, or disposed of by the Company, such Securities or
coupons nevertheless may be authenticated and delivered or disposed of as though
the person whose manual or facsimile signature appears on such Securities or
coupons had not ceased to be such officer of the Company; and any Security or
coupon may bear the manual or facsimile signature on behalf of the Company by
such persons as, at the actual date of the execution of such Security or coupon,
shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.
SECTION 2.06. Exchange and Registration of Transfer of Securities.
(a) Registered Securities of any series may be exchanged for a like aggregate
principal amount of Registered Securities of other authorized denominations and
of like tenor and terms of the same
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series. Registered Securities to be exchanged shall be surrendered at the office
or agency to be maintained by the Company pursuant to Section 3.02 in each Place
of Payment for such series of Registered Securities, and the Company shall
execute and cause to be registered, and the Trustee shall authenticate and
deliver in exchange therefor, the Registered Security or Securities which the
Securityholder making the exchange shall be entitled to receive.
(b) For each series of Registered Securities, the Company shall
cause to be kept in at least one such office or agency a Security register (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for registration of Registered Securities
and registration of transfer of Registered Securities as provided in this
Article Two. Each such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times such Security Registers shall be open for
inspection by the Trustee. Upon due presentment for registration of transfer of
any Registered Security of any series at any such office or agency, the Company
shall execute and register and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Securities of
the same series and of like tenor and terms for an equal aggregate principal
amount. Unless otherwise provided (pursuant to Section 2.01 or otherwise), the
Company initially appoints the Trustee, at the principal office of the Trustee,
as a Security registrar for each series of Registered Securities.
(c) All Registered Securities presented for registration of transfer
or for exchange or payment, if so required by the Company or the Trustee, shall
be duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
(d) To the extent specified in the manner provided by Section 2.01,
Registered Securities or Bearer Securities of any series may be issued in
exchange for Bearer Securities (except as otherwise specified in the manner
contemplated by Section 2.01 with respect to a Bearer Security in global form)
of the same series, of any authorized denomination and of like tenor and terms
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any office or agency specified in the manner provided by Section
2.01, with all unmatured coupons and all unpaid matured coupons thereto
appertaining. If the holder of a Bearer Security is unable to produce any
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<PAGE>
such unmatured coupon or coupons or unpaid matured coupon or coupons, 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 amount
represented by 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 hold
harmless each of them and any Paying Agent. If thereafter the holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 3.02, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the holder making the exchange is entitled to
receive.
(e) If at any time the Depositary for the Global Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of such series or if at any time the
Depositary for the Registered Securities of such series shall no longer be
eligible under Section 2.03 because it no longer is a clearing agency registered
under the Securities Exchange Act of 1934 and any other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect to the
Global Securities of such series. If a successor Depositary for the Global
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.01(9) shall no longer be effective with
respect to the Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(f) The Company at any time and in its sole discretion may determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and
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delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive form and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
(g) If specified by the Company pursuant to Section 2.01 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver:
(i) to each Person specified by such Depositary a new Security or
new Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(ii) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to holders thereof.
(h) In any exchange provided for in Section 2.06(e), Section 2.06(f)
or Section 2.06(g), the Company will execute and the Trustee will authenticate
and deliver Securities (i) in definitive registered form in authorized
denominations, if the Securities of such series are issuable as Registered
Securities, (ii) in definitive bearer form in authorized denominations, with
unmatured coupons attached, if the Securities of such series are issuable as
Bearer Securities or (iii) as either Registered or Bearer Securities, if the
Securities of such series are issuable in either form; provided, however, that
(A) no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a Bearer Security Tax
Certificate, (B) delivery of a Bearer Security shall occur only outside the
United States and (C) no definitive Bearer Security will be issued if the
Company or the Trustee has reason to know that such certificate is false.
(i) Upon the exchange of all of a Global Security for Securities in
certificated form, such Global Security
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shall be canceled by the Trustee. The exchange of any portion of a Global
Security for Securities in certificated form shall be subject to Section
2.03(a). Registered Securities issued in exchange for all or part of a Global
Security shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Securities are so registered. The Trustee shall deliver Bearer Securities
issued in exchange for all or part of a Global Security to the persons, and in
such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that (A) no definitive Bearer
Security shall be delivered in exchange for all or part of a temporary Global
Security unless the Company or its agent shall have received from the person
entitled to receive the definitive Bearer Security a Bearer Security Tax
Certificate, (B) delivery of a Bearer Security shall occur only outside the
United States and (C) no definitive Bearer Security will be issued if the
Company or the Trustee has reason to know that any such certificate is false.
(j) No service charge shall be made for any exchange or registration
of transfer of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer.
(k) The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any particular series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of such series selected for redemption under
Section 10.03 and ending at the close of business on the day of such mailing,
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except the unredeemed portion of any
Registered Security being redeemed in part or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series, provided that such
Registered Security shall be surrendered immediately for redemption with written
instruction for payment consistent with the provisions of this Indenture.
(l) Notwithstanding anything herein to the contrary: the exchange of
Bearer Securities for Registered
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Securities shall be subject to applicable laws and regulations in effect at the
time of exchange; and neither the Company nor the Trustee or any Security
registrar shall exchange any Bearer Securities into Registered Securities if it
has received an Opinion of Counsel that as a result of such exchanges the
Company could suffer adverse consequences under the United States Federal income
tax laws and regulations then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such exchanges
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security registrar.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities. (a)
In case any temporary or definitive Security of any series or any related coupon
shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon its request and in the absence of notice to the
Company and the Trustee that such Security or coupon has been acquired by a bona
fide purchaser, the Trustee shall authenticate and deliver a new Security of the
same series or related coupon, of equal aggregate principal amount and of like
tenor and terms bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Security or coupon, or in lieu of and in
substitution for the Security or coupon so destroyed, lost or stolen. In every
case the applicant for a substituted Security or coupon shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to hold each of them harmless, and, in every case of destruction, loss or theft,
the applicant also shall furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft of such security or coupon
and of the ownership of such Security or coupon.
(b) The Trustee may authenticate any such substitute Security and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substitute Security or coupon, 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 reasonable expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Security or coupon which has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company, instead of issuing a
substitute Security or coupon, may pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security or coupon)
if the applicant for such payment shall furnish to the Company and to the
Trustee
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such security or indemnity as may be required by them to hold each of them
harmless and, in case of destruction, loss or theft, evidence satisfactory to
the Company and the Trustee of the destruction, loss or theft of such Security
or coupon and of the ownership of such Security or coupon.
(c) Every substitute Security or coupon issued pursuant to the
provisions of this Section 2.07 by virtue of the fact that any Security or
coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or coupon shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
or coupons of the relevant series duly issued under this Indenture. All
Securities or coupons shall be held and owned by the holders upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
(d) Notwithstanding the foregoing, the payment of principal of and
any premium and interest on Bearer Securities, except as otherwise provided in
Section 3.02, shall be payable only at an office or an agency located outside of
the United States, and, with respect to any coupons, interest represented
thereby shall be payable only upon presentation and surrender of such coupons.
SECTION 2.08. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Securities of such series (and of
like tenor and terms) in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. In the case of Securities
of any series issuable as Bearer Securities, such temporary Securities may be in
global form, representing all or any part of the Outstanding Securities of such
series.
(b) Unless otherwise provided pursuant to Section 2.01:
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(i) Except in the case of temporary Securities in global form,
every such temporary Security shall be authenticated by the Trustee in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and
deliver to the Trustee definitive Securities of such series and thereupon
any or all temporary Securities of such series (accompanied, if
applicable, by all unmatured coupons and all unpaid matured coupons
appertaining thereto) may be surrendered in exchange therefor at the
principal office of the Trustee, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series of authorized
denominations. Such exchange shall be made at the Company's expense and
without any charge to the holder. Until so exchanged, the temporary
Securities of any series in all respects shall be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered under this Indenture. Notwithstanding the
foregoing, no Bearer Security shall be delivered in exchange for a
Registered Security, and a Bearer Security shall be delivered in exchange
for a Bearer Security only in compliance with the conditions set forth in
Section 2.06.
(ii) If Securities of any series are issued in temporary global
form, any such temporary Global Security, unless otherwise provided
pursuant to Section 2.01, shall be delivered to the Depositary for the
benefit of Euro-clear and CEDEL S.A. for credit to the respective accounts
of the beneficial owners of such Securities or to such other accounts as
they may direct.
(iii) Any such temporary Global Security shall be exchangeable, on
the terms and in the manner set forth therein, in whole or in part, for an
equal aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor and terms as the
portions of such temporary Global Security to be exchanged. Any definitive
Bearer Security shall be delivered in exchange for a portion of a
temporary Global Security only upon receipt by the Trustee from the Person
entitled to receive such definitive Bearer Security of a Bearer Security
Tax Certificate.
(iv) Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall
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be entitled in all respects to the same benefits under this Indenture as
definitive Securities of the same series and of like tenor and terms
authenticated and delivered hereunder, except that any interest payable
with respect to a temporary Global Security will be paid as specified
therein.
SECTION 2.09. Payment of Interest; Interest Rights. Interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Registered Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest. In case a Bearer
Security of any series is surrendered in exchange for a Registered Security of
such series after the close of business (at an office or agency in a Place of
Payment for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the holder of such coupon when due
in accordance with the provisions of this Indenture. Payment of interest on any
Registered Security may be made as provided in Section 3.02. Except as otherwise
provided in the terms of any particular series pursuant to Section 2.01.
interest will be calculated on the basis of a year consisting of twelve 30-day
months.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date ("Defaulted Interest")
forthwith shall cease to be payable to the holder on the relevant Regular Record
Date by virtue of having been such holder; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date (a "Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed
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to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as provided in this clause (i). Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 nor fewer than ten days prior to the date of the proposed
payment and not fewer than ten days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee promptly shall notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class,
postage prepaid, to each holder at his address as it appears in the
Security Register, not fewer than ten days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been given as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on any
such Security in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of that
series may be listed, and upon such notice as may be required by any such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause (ii), such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.09, each
Security of any series delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security of such series
shall carry the rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.
Subject to the limitations set forth in Section 3.02, the holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 3.02.
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SECTION 2.10. Cancellation of Securities Paid, etc. All Securities
and coupons surrendered for the purpose of payment, exchange or registration of
transfer, if surrendered to the Company or any Paying Agent or any Security
registrar, shall be delivered to the Trustee and promptly canceled by the
Trustee or, if surrendered to the Trustee, promptly shall be canceled by it; and
no Securities or coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee may destroy
canceled Securities or coupons and will deliver a certificate of such
destruction to the Company.
ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal and Interest. The Company duly
and punctually will pay or cause to be paid the principal of and any premium and
interest on the Securities of each series at the places, at the respective times
and in the manner provided in this Indenture and in the Securities. Any interest
due on Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
SECTION 3.02. Offices for Notices and Payments, etc. So long as any
Securities of a series remain Outstanding, the Company will maintain in each
Place of Payment for such series of Securities an office or agency where the
Securities of that series (but, except as otherwise provided below, unless such
Place of Payment is located outside the United States, not Bearer Securities)
may be presented for payment, for registration of transfer and for exchange as
provided in this Indenture and where notices and demands to or upon the Company
in respect of the Securities or of this Indenture may be served. If Securities
of a series are issuable as Bearer Securities, the Company will maintain,
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for such series that is located outside the United States where
Securities of such series and the related coupons may be presented for payment.
The Company will give to the Trustee prompt written notice of the location of
each such office or agency and of any change of location thereof. In case the
Company shall fail to maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices
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may be served at the principal office of the Trustee, and the Company hereby
initially appoints the Trustee its agent to receive all such presentations and
demands, except that Bearer Securities of that series and the related coupons
may be presented for payment at the place specified for that purpose pursuant to
Section 2.01(5). Unless otherwise provided pursuant to Section 2.01, the Company
hereby initially designates as the Place of Payment for each series of
Securities (other than Bearer Securities of that series and the related coupons)
the Borough of Manhattan, The City of New York, New York and appoints the
Trustee, at the principal office of the Trustee, as Paying Agent in such city.
Notwithstanding any other provisions to the contrary, the Company at its option
may make payment of principal and any premium and interest with respect to any
Registered Security by check mailed to the Person entitled thereto, as such
address appears on the Security Register, except that a holder of $10,000,000 or
more in aggregate principal amount of Securities of such series and of like
tenor and terms will be entitled to receive payments by wire transfer of
immediately available funds if appropriate wire transfer instructions shall have
been received in writing by the Trustee not later than ten Business Days prior
to the applicable Interest Payment Date.
No payment of principal of or any premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that payment of principal of and any premium and interest on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium or interest at all offices outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions and the Trustee receives an Opinion of Counsel that such payment
within the United States is legal. Unless otherwise provided as contemplated by
Section 2.01 with respect to any series of Securities, at the option of the
holder of any Bearer Security or related coupon, payment may be made by mailing
a check to an address outside the United States or by transfer to an account
maintained by the payee with a bank located outside the United States.
The Company also from time to time may designate one or more offices
or agencies (in or outside of such Place of Payment) where the Securities of one
or more series and any appurtenant coupons (subject to the preceding paragraph)
may be presented or surrendered for any and all such
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purposes, and from time to time may rescind such designations. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such office or agency.
SECTION 3.03. Provisions as to Paying Agent. (a) The Company, with
respect to the Securities of each series, prior to each due date of principal of
or any premium or interest on such Securities, will deposit with the Paying
Agent for such Securities an amount sufficient to pay the principal, premium or
interest so becoming due, such amount to be held in trust for the benefit of the
persons entitled to such principal, premium or interest. If the Company shall
appoint a Paying Agent other than the Trustee with respect to the Securities of
any series, the Company will notify the Trustee of its making, or failure to
make, any such payment; and the Company also shall cause any such Paying Agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 3.03, as
follows:
(1) that it will hold all amounts held by it as such agent for
the payment of the principal of or any premium or interest on such
Securities (whether such amounts have been paid to it by the Company or by
any other obligor on such Securities) in trust for the benefit of the
Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on such Securities) to make any payment
of the principal of or any premium or interest on such Securities when the
same shall be due and payable; and
(3) that it forthwith will pay to the Trustee, at any time
during the continuance of an Event of Default, upon the written request of
the Trustee, all amounts so held by it as such agent.
(b) If the Company shall act as its own Paying Agent with respect to
the Securities of any series, on or before each due date of the principal of or
any premium or interest on the Securities of such series, it will set aside,
segregate and hold in trust for the benefit of the Persons entitled thereto an
amount sufficient to pay such principal, premium or interest so becoming due and
will notify the Trustee of any failure to take such action and of any failure by
the Company (or by any other obligor under such Securities) to make any payment
of the principal of or any premium or interest on such Securities when the same
shall become due and payable.
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(c) Notwithstanding anything in this Section 3.03 to the contrary,
the Company, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture or for any other reason, may pay or by Company Order
direct any Paying Agent to pay to the Trustee all amounts held in trust by the
Company or any Paying Agent under this Indenture, such amounts to be held by the
Trustee upon the trusts contained in this Indenture.
(d) Notwithstanding anything in this Section 3.03 to the contrary,
the agreement to hold amounts in trust as provided in this Section 3.03 is
subject to Section 13.03 and Section 13.04.
SECTION 3.04. Corporate Existence. The Company will at all times
preserve and keep in full force and effect its corporate existence. Subject to
Article 9, the Company will at all times preserve and keep in full force and
effect the corporate existence of each of its Subsidiaries (unless merged into
the Company or any Subsidiary in accordance with Article 9) and all rights and
franchises of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep in
full force and effect such corporate existence, right or franchise could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 3.05. Payment of Taxes and Other Claims. The Company will
and will cause each of its Subsidiaries to file all income and franchise tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any of its Subsidiaries,
provided that neither the Company nor any of its Subsidiaries need pay any such
tax or assessment or claims if (i) the amount, applicability or validity thereof
is contested by the Company or such Subsidiary on a timely basis in good faith
and in appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonpayment of all such taxes and assessments in
the aggregate would not reasonably be expected to have a material adverse effect
on the business, operations, financial condition, properties or assets of the
Company and it Subsidiaries, taken as a whole.
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SECTION 3.06. Maintenance of Properties. The Company will and will
cause each of its Subsidiaries to maintain and keep, or cause to be maintained
and kept, its property in good repair, working order and condition (other than
ordinary wear and tear), so that the business carried on in connection therewith
may be properly conducted at all times, provided that this Section shall not
prevent the Company or any of its Subsidiaries from discontinuing the operation
and the maintenance of any of its property if such discontinuance is desirable
in the conduct of its business and the Company has concluded that such
discontinuance would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
financial condition, properties or assets of the Company and its Subsidiaries,
taken as a whole.
SECTION 3.07. Maintenance of Records. The Company will and will
cause each of its Subsidiaries to maintain proper books of records and accounts
in accordance with normal business practice in which full and appropriate
entries shall be made of all dealings or transactions in relation to their
respective businesses and activities.
SECTION 3.08. Statement as to Compliance. The Company will deliver
to the Trustee, within 120 days after the end of each calendar year commencing
with the first calendar year following the issuance of Securities of any series
under this Indenture, a written certificate of the principal executive officer,
the principal financial officer or the principal accounting officer of the
Company, covering the period from the date of issuance of such Securities to the
end of the calendar year in which such Securities were issued, in the case of
the first such certificate, and covering the preceding calendar year, in the
case of each subsequent certificate, stating, as to each signer of such
certificate, that:
(1) a review of the activities of the Company and each of its
Subsidiaries during the year and of performance under this Indenture has
been made under his supervision; and
(2) to the best of his knowledge, based on such review, the
Company and each of its Subsidiaries has fulfilled all its conditions and
covenants 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 and the nature and status of such default.
SECTION 3.09. Notice of Defaults. The Company will deliver to the
Trustee within five days after the
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occurrence thereof written notice of any event which with the giving of notice
or the lapse of time or both would be an Event of Default under Section 4.01.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.01. Events of Default. "Event of Default", when used with
respect to Securities of any series, means each of the following events unless
it is either inapplicable to a particular series or is specifically deleted or
modified in the supplemental indenture or resolution of the Board of Directors
under which such series of Securities is issued or in the form of Security for
such series:
(a) default in the payment of any installment of interest upon any
of the Securities of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 Business Days;
(b) default in the payment of the principal of or any premium on any
of the Securities of that series as and when the same shall become due and
payable at their Stated Maturity, upon redemption, by declaration or
otherwise;
(c) default in the payment of any sinking fund installment or
analogous obligation as and when the same shall become due and payable by
the terms of the Securities of that series;
(d) the Company or any of its Subsidiaries defaults (as principal or
as guarantor or other surety) (i) in the payment of any principal of or
interest on any other Indebtedness of the Company or any of its
Subsidiaries, or the obligation to repurchase or acquire any other
Indebtedness of the Company or any of its Subsidiaries, that is
outstanding in an aggregate principal amount of at least $5,000,000 beyond
any period of grace provided with respect thereto, or (ii) in the
performance of or compliance with any term of any evidence of any other
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Indebtedness of the Company or any of its Subsidiaries in an aggregate
outstanding principal amount at least $5,000,000 or of any mortgage,
indenture or other agreement relating thereto or any other condition
exists, and as a consequence of such default or condition such other
Indebtedness has become, or has been declared (or one or more Persons are
entitled to declare such Indebtedness to be), due and payable before its
stated maturity or before its regularly scheduled dates of payment;
(e) a final judgment or judgments or order or orders for the payment
of money in excess of $5,000,000 shall be entered against the Company or
one or more Subsidiaries (other than any Immaterial Subsidiary or
Immaterial Subsidiaries which, in the aggregate, comprise less than 5% of
the Consolidated Net Worth of the Company (such Immaterial Subsidiaries
being "Immaterial Insolvent Subsidiaries")) and within 60 days after entry
thereof such judgment or judgments or order or orders shall not have been
discharged or the execution thereof stayed pending appeal or within 60
days after the expiration of any such stay such judgment or judgments or
order or orders shall not have been discharged;
(f) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the
Securities of such series or in this Indenture (other than a covenant or
agreement a default in the performance of which or the breach of which
specifically is provided for elsewhere in this Section 4.01 or which
expressly has been included in this Indenture solely for the benefit of
one or more series of Securities other than such series), and continuance
of such failure for a period of 30 days after the date on which written
notice of such failure, requiring the Company to remedy the same, shall
have been given to the Company by the Trustee, or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of
the Securities of such series at the time Outstanding;
(g) the Company or a Subsidiary (other than any Immaterial Insolvent
Subsidiaries) (i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction, (iii)
makes an assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to
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it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate
action for the purpose of any of the foregoing;
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or a Subsidiary
(other than any Immaterial Insolvent Subsidiaries), a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, or constituting an order
for relief or approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take advantage of
any bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any of its
Subsidiaries (other than Immaterial Insolvent Subsidiaries), or any such
petition shall be filed against the Borrower or any of its Subsidiaries
(other than any Immaterial Insolvent Subsidiaries) and such petition shall
not be dismissed within 60 days; or
(i) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is sought
or granted under section 412 of the Code, (ii) a notice of intent to
terminate any Plan shall have been or is reasonably expected to be filed
with the PBGC or the PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to administer any Plan or
the PBGC shall have notified any Obligor or any ERISA Affiliate that a
Plan may become a subject of any such proceedings, (iii) the aggregate
"amount of unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title
IV of ERISA, shall exceed $5,000,000, (iv) the Company or any ERISA
Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV or ERISA or the penalty or exercise
tax provisions of the Code relating to employee benefit plans (as defined
in Section 3 of ERISA), (v) the Company or any ERISA Affiliate withdraws
from any Multiemployer Plan, or (vi) the Company or any Subsidiary
establishes or amends any employee welfare benefit plan (as defined in
Section 3 of ERISA) that provides post-employment welfare benefits in a
manner that would increase the liability of any Obligor or any Subsidiary
thereunder; and any such event or events described in
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clauses 4.01(i)(i) through 4.01(i)(vi) above, either individually or
together with any other such event or events, could reasonably be expected
to have a Material Adverse Effect.
Notwithstanding the foregoing, if at any time, Sections 6.01(f) and
6.01(i) of the Credit Facility, the analogous provision of any subsequent or
replacement committed credit facility, and Sections 11(f) and 11(i) of the
Note Purchase Agreements provide for increased dollar amounts referred to
therein, then Sections 4.01(d) and 4.01(e) shall be deemed to have been
amended simultaneously to replace the $5,000,000 amount referred to therein
with the lesser of the revised amounts (but in no event more than
$20,000,000) stated in Sections 6.01(f) and 6.01(i) of the Credit Facility,
the analogous provision of any subsequent or replacement committed credit
facility, and Sections 11(f) and 11(i) of the Note Purchase Agreements as so
amended.
If an Event of Default with respect to the Securities of any series
at the time Outstanding occurs and is continuing, then and in each such case,
unless the principal of all the Securities of such series already shall have
become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the principal amount of all the Securities of that
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable. This provision, however,
is subject to the condition that, at any time after such a declaration of
acceleration, and before any judgment or decree for the payment of the money due
shall have been obtained or entered as hereinafter provided, the holders of a
majority in aggregate principal amount of the Securities of such series then
Outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences, if:
(1) the Company shall pay or shall deposit with the Trustee an
amount sufficient to pay:
(A) all matured installments of interest on all the
Securities of that series and the principal of and any premium on
any and all Securities of that series that shall have become due
otherwise than by acceleration (with interest on overdue
installments of interest (to the extent that payment of such
interest is enforceable under applicable law) and on such principal
and premium
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at the rate borne by the Securities of that series, to the date of
such payment or deposit); and
(B) all amounts paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and
(2) any and all defaults with respect to Securities of that
series under this Indenture, other than the nonpayment of principal of and
any premium and accrued interest on Securities that shall have become due
by acceleration, shall have been cured or waived as provided in Section
4.07.
No such waiver or rescission and annulment shall extend or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee or any Securityholder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee or any
Securityholder, then and in every such case the Company, the Trustee and such
Securityholders, subject to any determination in such proceeding, shall be
restored respectively to their several positions and rights under this
Indenture, and all rights, remedies and powers of the Company, the Trustee and
such Securityholders shall continue as though no such proceeding had been taken.
SECTION 4.02. Payment of Securities on Default; Suit Therefor. (a)
In case default shall be made in the payment of (i) any installment of interest
upon any of the Securities as and when the same shall become due and payable,
and such default shall have continued for a period of 30 days, or (ii) the
principal of or any premium on any of the Securities as and when the same shall
have become due and payable whether at Maturity of the Securities, by
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities, the whole
amount that then shall have become due and payable on all such Securities for
principal, premium or interest, or any combination thereof, as the case may be,
with interest upon the overdue principal and premium and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest, at the rate borne by the Securities; and, in addition,
such further amount as shall be sufficient to cover the costs and expenses of
collection,
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including reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents, attorneys and counsel.
(b) In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or proceedings
at law or in equity for the collection of the amounts so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Securities and coupons and collect in the manner provided by law
out of the property of the Company or any other obligor on the Securities and
coupons, wherever situated, the money adjudged or decreed to be payable.
(c) In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company, any Subsidiary (other than any Immaterial
Insolvent Subsidiaries) or any other obligor on the Securities and coupons under
Title 11 of the United States Code or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company,
any Subsidiary (other than any Immaterial Insolvent Subsidiaries) or such other
obligor, or in the case of any other similar judicial proceedings relative to
the Company or other obligor on the Securities and coupons, or to the creditors
or property of the Company, such Subsidiary (other than any Immaterial Insolvent
Subsidiaries) or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as expressed in the
Securities or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section
4.02, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and any premium and interest owing and unpaid in respect of the Securities, and,
in case of any judicial proceedings, (i) to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Securityholders allowed in such judicial proceedings relative to the Company,
any Subsidiary (other than any Immaterial Insolvent Subsidiaries) or any other
obligor on the Securities and coupons, its or their creditors, or its or their
property, and (ii) to collect and receive any money or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses;
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and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders 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 Securityholders, to pay to the Trustee any amount due it for
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel and any other amounts due the Trustee under Section
5.06. To the extent that such payment of reasonable compensation, expenses and
counsel fees out of the trust estate in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the holders of the Securities and coupons may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
(d) Nothing contained in this Section 4.02 shall be deemed to
authorize the Trustee to authorize or consent to or adopt on behalf of any
Securityholder any plan of reorganization or arrangement affecting the
Securities or related coupons or the rights of any Securityholder, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Securities or related coupons, may be enforced by
the Trustee without the possession of any of the Securities or coupons, or the
production thereof in any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of 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 the holders of the Securities and related coupons.
SECTION 4.03. Application of Money Collected by Trustee. Any money
collected by the Trustee with respect to any series of Securities or related
coupons pursuant to Section 4.02 shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such money, upon
presentation of the several Securities of such series or coupons, or both, as
the case may be, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts then due the Trustee under
Section 5.06;
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SECOND: In case the principal of the Outstanding Securities of that
series shall not have become due and be unpaid, to the payment of interest
on the Securities of that series in the order of the Maturity of the
installments of such interest, with interest (to the extent enforceable
under applicable law) upon the overdue installments of interest at the
rate borne by the Securities of that series, such payments to be made
ratably to the persons entitled thereto; and
THIRD: In case the principal of the Outstanding Securities of that
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of that
series for principal and any premium and interest, with interest on the
overdue principal and any premium and (to the extent enforceable under
applicable law) upon overdue installments of interest at the rate borne by
the Securities of that series; and in case such money shall be
insufficient to pay in full the whole amounts so due and unpaid upon the
Securities of that series, then to the payment of such principal and any
premium and interest without preference or priority of principal over
interest, or of interest over principal, or of any premium over principal
or interest, or of principal or interest over any premium or of any
installment of interest over any other installment of interest, or of any
Security of that series over any other Security of that series, or of any
coupon related to a Security of a series over any other coupon related to
a Security of the same series, ratably to the aggregate of such principal
and any premium and accrued and unpaid interest.
SECTION 4.04. Proceedings by Securityholders. No holder of any
Security of any series or any related coupon shall have any right to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy under this Indenture, unless such holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as provided in Section 4.01, and unless also (i) the holders of not less than
25% in aggregate principal amount of the Securities of that series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee under this Indenture and
shall have offered to the Trustee such reasonable indemnity as the Trustee may
require against the costs, expenses and liabilities to be incurred in compliance
with such request, (ii) the Trustee for 60 days after its receipt of such
notice, request and offer of
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indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and (iii) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the holders of a majority
in principal amount of the Outstanding Securities of that series; it being
understood and intended, and being expressly covenanted by each Person who
acquires and holds a Security or related coupon with every other such Person,
that no one or more holders of Securities shall have any right in any manner
whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other holder of such Securities
or coupons, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner provided in this Section 4.04 and for the equal, ratable and common
benefit of all holders of Securities and coupons.
Notwithstanding any other provision of this Indenture, however, the
right of any holder of any Security to receive payment of the principal of and
any premium and interest on such Security on or after the respective Stated
Maturities, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company, shall not be impaired or
affected without the consent of such holder.
SECTION 4.05. Proceedings by Trustee. In case of an Event of Default
under this Indenture, the Trustee in its discretion may proceed to protect and
enforce its rights and the rights of the Securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other proper remedy or
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.06. Remedies Cumulative and Continuing; Delay or Omission
Not Waiver. All rights, powers and remedies conferred upon or reserved to the
Trustee or to the Securityholders, to the extent permitted by law, shall be
deemed cumulative and not exclusive of any thereof or of any other rights,
powers and remedies available to the Trustee or the holders of the Securities
and related coupons, now or hereafter existing, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture; and no delay or omission of the Trustee
or of any holder of any of the
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Securities or related coupons to exercise any such right, power or remedy shall
impair any such right, power or remedy, or shall be construed to be a waiver of
any default or an acquiescence in such default; and, subject to the provisions
of Section 4.04, every power and remedy conferred upon or reserved to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
The assertion of any right, power or remedy shall not prevent the concurrent
assertion of any other right, power or remedy.
SECTION 4.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders. (a) The holders of a majority in aggregate
principal amount of the Securities of all series affected (voting as one class)
at the time Outstanding determined in accordance with Sections 6.04 and 6.06
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided, however, that (i) such direction may
not be in conflict with law or this Indenture or expose the Trustee to personal
liability or be unduly prejudicial to the holders of the Securities and related
coupons not joining in the direction, and (ii) the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with this Indenture
and such direction.
(b) Prior to any declaration that the principal of the Outstanding
Securities of any series is due and payable, the holders of a majority in
aggregate principal amount of the Securities of that series at the time
Outstanding on behalf of the holders of all of the Securities of that series may
waive any past default or Event of Default under this Indenture and its
consequences except a default under a covenant in this Indenture that, pursuant
to Section 8.02, cannot be modified without the consent of each holder of a
Security of the series affected thereby. Upon any such waiver the Company, the
Trustee and the holders of the Securities of that series and the related coupons
shall be restored to their former positions and rights under this Indenture,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default under this Indenture shall have been waived as permitted by
this Section 4.07, such default or Event of Default, for all purposes of the
Securities, the related coupons and this Indenture, shall be deemed to have been
cured and to be not continuing.
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SECTION 4.08. Notice of Defaults. The Trustee, within 90 days after
the occurrence of a default with respect to Securities of any series, shall mail
to all Securityholders of that series, at their addresses shown on the Security
Register, notice of all such defaults known to the Trustee, unless such defaults
shall have been cured or waived before the giving of such notice (the term
"default" for the purpose of this Section 4.08 being hereby defined to mean any
event which constitutes or after notice or lapse of time or both would
constitute an Event of Default); and provided that, except in the case of
default in the payment of the principal of or any premium or interest on any of
the Securities of that series or in the making of any sinking fund payment or
analogous obligation with respect to Securities of that series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Securityholders of that
series.
SECTION 4.09. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Security or coupon by his acceptance
thereof shall be deemed to have agreed, that any court in its discretion may
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit and that such court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant; provided, however, that the provisions of this Section 4.09 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of that series, or to any
suit instituted by any Securityholder for the enforcement of the payment of the
principal of or any premium or interest on any Security on or after the
respective Stated Maturities (or, in the case of redemption or repayment, on or
after the redemption date or repayment date).
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of Trustee. In case an
Event of Default has occurred (which has not been cured or waived) the Trustee
shall exercise
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such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, its own willful misconduct or any action or failure to act taken or
omitted by it in bad faith, except that:
(a) except during the continuance of an Event of Default:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee conclusively may rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions that by any provisions of this
Indenture specifically are required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount
of the Securities of any series at the time Outstanding (determined as
provided in Section 6.04) relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising
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any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
5.01.
The provisions of this Section 5.01 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act.
SECTION 5.02. Reliance on Documents, Opinions, etc. Subject to the
applicable provisions of the Trust Indenture Act and in furtherance thereof and
subject to the provisions of Section 5.01:
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of
the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or omitted by it under this Indenture in good faith and in
accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of
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any of the Securityholders, pursuant to the provisions of this Indenture,
unless such Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that may
be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, coupon or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books and records of the Company to the extent reasonably
necessary to verify such facts or matters; and
(g) the Trustee may execute any of the trusts or powers under this
Indenture or perform any duties under this Indenture 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 by it with due care under this Indenture.
SECTION 5.03. No Responsibility for Recitals, etc. The recitals
contained in this Indenture and in the Securities (except in the Trustee's
certificate of authentication) and in any coupons shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or the coupons. The
Trustee shall not be accountable for the use or application by the Company of
any Securities or the proceeds of any Securities authenticated and delivered by
the Trustee.
SECTION 5.04. Trustee, Paying Agents or Registrar May Own
Securities. Subject to the applicable provisions of the Trust Indenture Act, the
Trustee or any Paying Agent or Security registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
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rights it would have if it were not Trustee, Paying Agent or Security registrar.
SECTION 5.05. Money to Be Held in Trust. Subject to the provisions
of Section 13.03 and Section 13.04, all money received by the Trustee, until
used or applied as herein provided, shall be held in trust for the purposes for
which it was received. Money held by the Trustee need not be segregated from
other funds except as provided by law. The Trustee shall be under no liability
for interest on any money received by it under this Indenture, except as the
Company and the Trustee otherwise may agree.
SECTION 5.06. Compensation and Expenses of Trustee. The Company will
pay to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation for all services rendered by it under this Indenture
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense, disbursement or advance as
may be attributable to its negligence, bad faith or willful misconduct. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith
or willful misconduct on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable costs and expenses (including the reasonable costs and expenses of
its counsel) of defending itself against any claim of liability in connection
with the exercise or performance of any of its powers under this Indenture. The
obligations of the Company under this Section 5.06 shall constitute additional
Indebtedness under this Indenture.
SECTION 5.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 5.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action under this
Indenture, such matter (unless other evidence in respect thereof be herein
specifically prescribed), in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, may be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee, and such
Officers'
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Certificate, in the absence of negligence, bad faith or willful misconduct on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture upon the faith of
such Officers' Certificate.
SECTION 5.08. Eligibility of Trustee. The Trustee under this
Indenture shall at all times be a corporation organized and doing business under
the laws of the United States or any State thereof or of the District of
Columbia (or a corporation or other person permitted to act as Trustee by the
Commission) authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal, State or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 5.08 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 5.08, the Trustee shall resign immediately in the
manner and with the effect specified in Section 5.09. Neither the Company nor
any person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee under this Indenture.
SECTION 5.09. Resignation or Removal of Trustee. (a) The Trustee may
resign at any time by giving written notice of such resignation to the Company,
by mailing notice of such resignation to the holders of Registered Securities at
their addresses as they shall appear on the Security Register and, if any Bearer
Securities are Outstanding, by publishing notice of such resignation in a
newspaper of general circulation, in each place of payment for such Bearer
Securities, customarily published at least once a day for at least five days in
each calendar week.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request therefor
by the Company or by any Securityholder who has been a bona fide holder of
a Security or Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.08 and
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shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or a 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, the Company may remove the Trustee by written
instrument, executed by Company Order authorized by the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee (with written notice of such removal mailed to the
holders of Registered Securities at their address as they shall appear on the
Security Register, and, if any Bearer Securities are Outstanding, by publishing
notice of such resignation in a newspaper of general circulation, in each place
of payment for such Bearer Securities, customarily published at least once a day
for at least five days in each calendar week), or, subject to the provisions of
Section 4.09, any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months, on behalf of himself and all others
similarly situated, may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(c) 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, the
Company promptly shall appoint a successor Trustee by a Company Order authorized
by the Board of Directors, one copy of which instrument shall be delivered to
the retiring Trustee and one copy to the successor Trustee. If, within one year
after such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee shall be appointed by the holders of a majority in
principal amount of the Securities (voting as a single class) at the time
Outstanding by instrument or instruments delivered to the Company and the
retiring Trustee, the successor Trustee so appointed, forthwith upon its
acceptance of such appointment, shall become the successor Trustee and supersede
the successor Trustee appointed by the Company. If no successor Trustee shall
have been so appointed by the Company or the Securityholders and accepted
appointment in the manner provided in Section 5.10 within 60 days after notice
of the resignation or removal of the Trustee is mailed to the Securityholders,
the resigning Trustee may petition any court of competent jurisdiction for the
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appointment of a successor Trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months, subject to the
provisions of Section 4.09, on behalf of such holder and all other holders
similarly situated, may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(d) The holders of a majority in aggregate principal amount of the
Securities (voting as a single class) at the time Outstanding at any time, upon
notice to the Trustee, may remove the Trustee.
(e) Any removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 5.09 shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 5.10. Any resignation of the Trustee shall become effective only upon
the appointment of a successor Trustee and upon the acceptance of appointment by
the successor Trustee as provided in Section 5.10.
SECTION 5.10. Acceptance by Successor Trustee. Any successor Trustee
appointed as provided in Section 5.09 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment under this Indenture, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor under this Indenture,
with like effect as if originally named as Trustee in this Indenture; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act, upon payment of any amounts then due it pursuant to
the provisions of Section 5.06, shall execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall transfer, assign and deliver to such successor all
property and money held by such predecessor Trustee under this Indenture. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act,
nevertheless shall retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to the provisions of
Section 5.06.
No successor Trustee shall accept appointment as provided in this
Section 5.10 unless at the time of such acceptance such successor Trustee shall
be qualified under
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the provisions of Section 310(b) of the Trust Indenture Act and eligible under
the provisions of Section 5.08.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 5.10, the Company shall mail notice of the succession of such
Trustee under this Indenture to the holders of Registered Securities at their
addresses as they shall appear on the Security Register, and, if any Bearer
Securities are Outstanding, by publishing notice of such resignation in a
newspaper of general circulation, in each place of payment for such Bearer
Securities, customarily published at least once a day for at least five days in
each calendar week. If the Company fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed and, if necessary, published at the expense
of the Company.
SECTION 5.11. Succession by Merger, etc. Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties to this Indenture
provided such corporation shall be qualified under the provisions of Section
310(b) of the Trust Indenture Act and eligible under the provisions of Section
5.08.
In case at the time such successor Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor Trustee may authenticate such
Securities either in the name of any predecessor Trustee under this Indenture or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
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ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.01. Action by Securityholders. Whenever in this Indenture
it is provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined in such action may
be evidenced (i) by any instrument or any number of instruments of similar tenor
executed by Securityholders in person or by agent or proxy appointed in writing,
(ii) by the record of the holders of Securities voting in favor of such action
at any meeting of Securityholders duly called and held in accordance with the
provisions of this Article Six or (iii) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders. The
Company may set a record date for purposes of determining the identity of
holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall be the later of ten
days prior to the first solicitation of such consent or the date of the most
recent list of holders furnished to the Trustee pursuant to the provisions of
Section 312(a) of the Trust Indenture Act prior to such solicitation. If a
record date is fixed, those persons who were holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consents or to revoke any vote or
consent previously given, whether or not such persons continue to be holders
after such record date. No such vote or consent shall be valid or effective if
such vote occurs or such consent is obtained more than 120 days after such
record date.
SECTION 6.02. Proof of Execution by Securityholders. (a) Subject to
the provisions of Sections 5.01, 5.02 and 7.05, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee.
(b) The ownership of Registered Securities of any series shall be
proved by the Security Register or by a certificate of the Security registrar of
such series.
(c) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of
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holding the same, may be proved by the production of such Bearer Securities or
by a certificate executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities in the amount and with the serial numbers 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 (i) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, (ii)
such Bearer Security is produced to the Trustee by some other Person, (iii) such
Bearer Security is surrendered in exchange for a Registered Security or (iv)
such Bearer Security is no longer Outstanding. The fact and date of execution of
any such instrument or writing, the authority of the Person executing the same
and the principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding the same
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section 6.02(c).
(d) The record of any Securityholders' meeting shall be proved in
the manner provided in Section 7.07.
SECTION 6.03. Who Are Deemed Absolute Owners. Prior to due
presentation of a Registered Security for registration of transfer, the Company,
the Trustee, any Paying Agent and any Security registrar may treat the Person in
whose name such Registered Security is registered as owner of such Registered
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 2.09) interest on such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security is overdue
and notwithstanding any notation of ownership or other writing on such
Registered Security made by anyone other than the Company or any Security
registrar, and neither the Company, the Trustee, any Paying Agent nor any
Security registrar shall be affected by any notice to the contrary. All such
payments so made to any such holder as shown in the Security Register, or upon
his order, shall be valid, and, to the extent of the amount so paid, effectual
to satisfy and discharge the liability for money payable upon any such
Registered Security.
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The Company, the Trustee, any Paying Agent and any Security
registrar may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Bearer Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon is overdue, and
neither the Company, the Trustee, any Paying Agent nor any Security registrar
shall be affected by any notice to the contrary. All such payments so made to
any such bearer shall be valid and, to the extent of the amount so paid,
effectual to satisfy and discharge the liability for money payable upon any such
Bearer Security.
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 6.04. Company-Owned Securities Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any direction, consent, waiver or other action under this
Indenture, Securities that are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination; provided, however, that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Securities that the Trustee
knows are so owned shall be so disregarded.
SECTION 6.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities of any or all series specified in
this Indenture in connection with such action, any holder of a Security the
serial number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action, by filing written notice
with the Trustee at the principal office of the Trustee and upon proof of
holding as provided in Section 6.02, may revoke such action so far as concerns
such Security. Except as provided in this Section 6.05 any such action taken by
the holder of any Security shall be
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conclusive and binding upon such holder and upon all future holders and owners
of such Security, irrespective of whether or not any notation in regard thereto
is made upon such Security or any Security issued in exchange or substitution
for such Security.
SECTION 6.06. Determination of Outstanding Securities. In
determining whether the holders of the requisite principal amount of Securities
issued under this Indenture have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or present at a meeting of
holders of Securities for quorum purposes:
(a) the principal amount of an Original Issue Discount Security that
will be deemed to be outstanding will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
acceleration of the maturity thereof, and
(b) the principal amount of a Security denominated in a foreign
currency or currency unit will be the U.S. dollar equivalent, determined on the
date of original issuance of such Security, of the principal amount of such
Security or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent, determined on the date of original issuance of such Security, of the
amount determined as provided in Section 7.06(a) above.
ARTICLE SEVEN
SECURITYHOLDERS' MEETINGS
SECTION 7.01. Purposes of Meetings. A meeting of Securityholders of
any or all series may be called at any time and from time to time pursuant to
the provisions of this Article Seven for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default under this Indenture and its consequences, or to take any other
action authorized to be taken by Securityholders pursuant to any of the
provisions of Article Four;
(2) to remove the Trustee and nominate a successor Trustee
pursuant to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental to this Indenture pursuant to the provisions of Section 8.02;
or
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(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under applicable
law.
SECTION 7.02. Call of Meetings by Trustee. The Trustee at any time
may call a meeting of Securityholders of any or all series to take any action
specified in Section 7.01, to be held at such time and at such place in The City
of New York for Registered Securities and the City of London, England for Bearer
Securities, as the Trustee shall determine. Notice of every meeting of the
Securityholders, 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 mailed
to holders, if any, of Registered Securities of each series affected at their
addresses as they shall appear on the Security Register, and shall be provided
to holders, if any, of Bearer Securities of each series affected by publication
thereof in a newspaper of general circulation, in each Place of Payment for each
such series, customarily published at least once a day for at least five days in
each calendar week. Such notice to holders of Registered Securities shall be
mailed not fewer than 20 nor more than 90 days prior to the date fixed for the
meeting. Such notice to holders of Bearer Securities shall be made by the
required publication on at least two dates, the first such publication to be not
more than 90 days and the second such publication to be not fewer than 20 days
prior to the date fixed for the meeting.
Any meeting of Securityholders shall be valid without notice if the
holders of all Securities then Outstanding of each series affected are present
in person or by proxy or if notice is waived before or after the meeting by the
holders of all Outstanding Securities of each series affected, and if the
Company and the Trustee are either present by duly authorized representatives
or, before or after the meeting, have waived notice.
SECTION 7.03. Call of Meetings by Company or Securityholders. In
case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least 10% in aggregate principal amount of the
Securities then Outstanding of any or all series, as the case may be, that may
be affected by the action proposed to be taken, shall have requested the Trustee
to call a meeting of Securityholders of any or all series, as the case may be,
that may be so affected, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
mailed or published (as appropriate under Section 7.02) the notice of such
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meeting within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place in the city designated in
Section 7.02, as the case may be, for such meeting and may call such meeting to
take any action authorized in Section 7.01, by mailing or publishing notice of
such meeting as provided in Section 7.02.
SECTION 7.04. Qualifications for Voting. To be entitled to vote at
any meeting of Securityholders of any series a Person shall (i) be a holder of
one or more Securities of such series as set forth in the Security Register for
such series or (ii) be a Person appointed by an instrument in writing as proxy
by a holder of one or more Securities of such series, subject to the provisions
of Section 6.02. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the representatives of the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 7.05. Regulations. (a) Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities 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 think fit.
(b) The Trustee, by an instrument in writing, shall appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 7.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, in like
manner shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
(c) Subject to the provisions of Section 6.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities.
(d) 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
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right to vote other than by virtue of Securities held by him or instruments in
writing duly designating him as the person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 7.02 or Section 7.03 may be adjourned from time to time by
a majority of those present and the meeting may be held as so adjourned without
further notice.
SECTION 7.06. Quorum. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities affected by the action proposed
to be taken shall constitute a quorum for a meeting of such Securityholders. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting, if convened at the request of holders of Securities, shall
be dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not fewer than ten days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not fewer than ten days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 7.02,
except that such notice need be given only once not fewer 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 affected
by the action proposed to be taken which shall constitute a quorum.
SECTION 7.07. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the principal amount of the Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken at such meeting and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
such notice was mailed or published as provided in Section 7.02 or
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Section 7.03. The record shall show the principal amount of the Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of
the matters stated in such record.
SECTION 7.08. No Delay of Rights by Meeting. Nothing in this Article
Seven shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders or any rights expressly or impliedly conferred
under this Article Seven to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders under any of the provisions of this Indenture or of the
Securities.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee from time to time and at any time may enter into an
indenture or indentures supplemental to this Indenture for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumptions by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Nine;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of any series
of the Securities or coupons as the Board of Directors and the Trustee
shall consider to be for the protection of the holders of such Securities
or coupons, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions or conditions
a default or an Event of Default permitting the enforcement of all or any
of the several remedies set forth in this Indenture; provided, however,
that in respect of any such additional covenant, restriction or condition
such supplemental indenture may provide for notice or a particular period
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of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the
Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained in this Indenture or in any supplemental indenture that may be
defective or inconsistent with any other provision contained in this
Indenture or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this Indenture
that shall not adversely affect the interests of the holders of
Outstanding Securities of any series or any related coupons;
(d) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(e) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal or any premium on Registered Securities or of principal or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities 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 related coupons;
(f) 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; provided, however, that such action shall not adversely affect
the interests of the holders of Outstanding Securities of any series;
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America;
(h) to provide for the documentation necessary for the issuance of
Securities at an issue price lower than the principal amount thereof,
including to provide that upon the redemption or acceleration of the
Maturity thereof an amount less than the principal amount thereof shall
become due and payable and that such amount shall be used to determine the
relative voting rights of the holders thereof; or
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(i) to conform the Indenture to the provisions of the Trust
Indenture Act as then in effect.
The Trustee hereby is authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be contained in such supplemental indenture
and to accept the conveyance, transfer and assignment of any property under such
supplemental indenture, but the Trustee shall not be obligated to, but in its
discretion may, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 8.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding
any provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures with Consent of
Securityholders of a Series. With the consent (evidenced as provided in Section
6.01) of the holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding of each series affected by such
supplemental indenture or indentures, the Company, when authorized by the
resolutions of the Board of Directors, and the Trustee from time to time and at
any time may enter into an indenture or indentures supplemental to this
Indenture 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 the Securities of each such series;
provided, however, that without the consent of the holder of each Outstanding
Security affected thereby no such supplemental indenture shall: (a) change the
Stated Maturity of the principal of or any premium or any installment of
interest on, any Security, or reduce the principal amount of any Security or any
premium or interest on any Security, or reduce the amount of principal payable
upon acceleration of the Maturity of any Original Issue Discount Security, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest on any Security is payable, or impair the
right to institute suit for the enforcement of any such payment on or after its
Stated Maturity; (b) reduce the percentage in principal amount of 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 under
this Indenture and their consequences provided for in this Indenture; or (c)
modify
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the provisions of Section 4.01 providing for the rescinding and annulment of a
declaration accelerating the Maturity of the Securities of any series, or any of
the provisions of this Section 8.02 or Section 4.07(b), except to increase any
such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders of
such series as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee in its discretion may, but shall not be
obliged to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 8.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 8.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures. Any supplemental indenture executed pursuant to the
provisions of this Article Eight shall comply with the Trust Indenture Act as
then in effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eight, this Indenture shall be and be deemed to be
modified and amended in accordance with such supplemental indenture and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of the series
of Securities affected thereafter shall be determined, exercised and enforced
under this Indenture subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 8.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eight may bear a notation in form acceptable to the
Trustee as to any matter provided for in such supplemental indenture. If the
Company so shall determine, new Securities of any series and any related coupons
so modified as to conform, in the opinion of the Board of Directors, to
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any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange, as provided in Section 2.06, for the Outstanding
Securities of such series and any related coupons, upon surrender of such
Outstanding Securities of such series and any related coupons.
SECTION 8.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee. The Trustee, subject to the provisions of Section 5.01 and
Section 5.02, shall be entitled to receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Eight complies with the requirements of this
Article Eight.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 9.01. Company May Consolidate, etc., on Certain Terms. The
Company and its Subsidiaries shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets (determined on a
consolidated basis) substantially as an entirety to any Person, unless:
(1) (i) the Company or any Subsidiary of the Company is the
surviving corporation, or (ii) the Person formed by such consolidation or
into which the Company or its Subsidiaries is merged or the Person which
acquires by conveyance or transfer or which leases the properties and
assets of the Company substantially as an entirety shall be a Person
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and expressly shall assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on the Securities, according to their
terms, and the performance of every covenant of this Indenture and in such
series on the part of the Company or such Subsidiary to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
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(3) the Company 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 supplemental
indenture comply with this Article Nine and that all conditions precedent
provided for in this Indenture relating to such transaction have been
complied with.
SECTION 9.02. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety in accordance with Section 9.01, the
successor corporation 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 corporation had
been named as the Company in this Indenture, and thereafter, except in the case
of a lease, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities of each series and any related
coupons.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company prior to such succession,
any of or all the Securities of each series issuable under this Indenture which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of upon the
Company Order, and subject to all the terms, conditions and limitations in this
Indenture, the Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee on
its behalf for that purpose. All the Securities so issued shall have in all
respects the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all such Securities had been issued at the date of the execution of
this Indenture.
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ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 10.01. Applicability of Article. Securities of any series
that are redeemable before their Stated Maturity shall be redeemable only in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.01 for Securities of any series) in accordance with this Article
Ten.
SECTION 10.02. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities shall be evidenced by a Company Order.
In case of any redemption at the election of the Company of less than all the
Securities of any series, the Company, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), shall notify the Trustee of such Redemption Date, of the tenor and
terms of the Securities of such series to be redeemed and of the principal
amount of such Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series of like tenor and terms specified by
the Company 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 and of such tenor and terms not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denominations for such Securities or
any integral multiple thereof) of the principal amount of such Registered
Securities or such Bearer Securities of a denomination larger than the minimum
authorized denomination for such Registered Securities or such Bearer
Securities.
The Trustee promptly shall notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any
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Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
SECTION 10.04. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 7.02 not fewer than 30 or more than 60
days prior to the Redemption Date. All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after such
date;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(6) that Bearer Securities may be surrendered for payment only
at such place or places that are outside the United States, except as
provided in Section 3.02; and
(7) that the redemption is for a sinking fund, if such is the
case.
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 10.05. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 3.03(b)) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be the same
date as the Stated Maturity of an installment of interest thereon) accrued
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interest on, all the Securities that are to be redeemed on that date; provided,
however, that deposits with respect to Bearer Securities shall be made with a
Paying Agent or Paying Agents located outside the United States except as
otherwise provided in Section 3.02, unless otherwise specified as contemplated
by Section 2.01.
SECTION 10.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall become due and payable, on the Redemption Date, 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, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that: (i) 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 3.02); and (ii) installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant record date for the payment of such interest
according to the terms of such Securities.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer 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
is furnished to them such security or indemnity as they may require to hold each
of them and any Paying Agent harmless. If thereafter the holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such holder shall be entitled to receive the amount so deducted on
account of such coupon without interest thereon; provided, however, that
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or
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agency located outside of the United States except as otherwise provided in
Section 3.02.
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 or related coupon.
SECTION 10.07. Registered Securities Redeemed in Part. Any
Registered Security that is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the holder thereof or his 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 new Registered Securities of the same
series and of like tenor and terms, of any authorized denomination as requested
by such holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE ELEVEN
SINKING FUNDS
SECTION 11.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". 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 11.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
SECTION 11.02. Satisfaction of Sinking Fund Payments with
Securities. The Company
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(1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and
(2) may apply as a credit Securities of a series that have
been repurchased at the option of a holder or redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund, and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 11.03. Redemption of Securities for Sinking Fund. Not fewer
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment of 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 Securities of that series pursuant to
Section 11.02 and also will deliver to the Trustee any Securities to be so
delivered. Not fewer than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.03 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 10.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 10.06 and Section 10.07.
ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 12.01. Terms Set Forth in the Securities. Securities of any
series which in accordance with their terms are repayable at the option of the
holders thereof
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before their Stated Maturity shall be repaid in accordance with the terms set
forth in such Securities.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Securities of any series and any
related coupons theretofore authenticated (other than any Securities of such
series and any related coupons that shall have been mutilated, destroyed, lost
or stolen and in lieu of or in substitution for which other Securities or
coupons shall have been authenticated and delivered) and not theretofore
canceled, or (b) all the Securities of any series and any related coupons not
theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds sufficient to pay upon
Stated Maturity, redemption or repayment at the option of a holder all the
Securities of such series and related coupons (other than any Securities of such
series and related coupons that shall have been mutilated, destroyed, lost or
stolen and that have been replaced or paid as provided in Section 2.06) not
theretofore canceled or delivered to the Trustee for cancellation, including
principal and any premium and interest due or to become due prior to such Stated
Maturity, Redemption Date or date of repayment, as the case may be, but
excluding, however, the amount of any money for the payment of principal of or
any premium or interest on the Securities
(1) theretofore deposited with the Trustee and repaid by the
Trustee to the Company in accordance with the provisions of Section 13.04,
or
(2) paid to any State or the District of Columbia pursuant to
its unclaimed property or similar laws, and if in either case the Company
also shall pay or cause to be paid all other sums payable under this
Indenture by the Company
then this Indenture shall cease to be of further effect with respect to
Securities of such series and any related coupons, and the Trustee, on demand of
the Company accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 15.05 and at the cost and
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expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to Securities of
such series and any related coupons. The obligations of the Company to the
Trustee under Section 5.06 shall survive the termination of this Indenture.
The Trustee shall notify the Securityholders of such series, at the
expense of the Company, of the immediate availability of the amount referred to
in clause (b) of this Section 13.01 by mailing a notice, first class postage
prepaid, to the holders of Registered Securities of such series at their
addresses as they shall appear on the Security Register, and, if any Bearer
Securities are Outstanding, by publishing notice of such resignation in a
newspaper of general circulation, in each place of payment for such Bearer
Securities, customarily published at least once a day for at least five days in
each calendar week.
SECTION 13.02. Deposited Money to Be Held in Trust by Trustee.
Subject to Section 13.04, all money deposited with the Trustee pursuant to
Section 13.01 shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company if acting as its own
Paying Agent, other than as to Bearer Securities, except as provided in Section
3.02), to the holders of the particular Securities and related coupons for the
payment of which such money has been deposited with the Trustee, of all sums due
and to become due thereon for principal and any premium and interest.
SECTION 13.03. Paying Agent to Repay Money Held. Upon the
satisfaction and discharge of this Indenture all money then held by any Paying
Agent (other than the Trustee), upon demand of the Company, shall be repaid to
it or paid to the Trustee, and thereupon such Paying Agent shall be released
from all further liability with respect to such money.
SECTION 13.04. Return of Unclaimed Money. Any money deposited with
or paid to the Trustee or any Paying Agent for payment of the principal of or
any premium or interest on Securities of any series, or then held by the Company
in trust for the payment of the principal of or any premium or interest on
Securities of any series, and not applied but remaining unclaimed by the holders
of Securities of that series for two years after the date upon which the
principal or any premium or interest on such Securities, as the case may be,
shall have become due and payable, shall be repaid to the Company by the Trustee
on demand or, if then held by the Company, shall be discharged from such trust,
and all liability of the Trustee thereupon shall cease; and
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the holder of any of such Securities thereafter, as an unsecured general
creditor, shall look only to the Company for payment of such Securities, 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, thereupon shall cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, at the expense of the Company, in the case of
Registered Securities or Bearer Securities, may cause to be published once, in a
newspaper of general circulation in each Place of Payment for such series
customarily published on each Business Day (whether or not published on
Saturdays, Sundays or holidays) or, in the case of Registered Securities, to be
mailed to each such holder, or in the case of Registered Securities to be mailed
and published, notice that such money remains unclaimed and that, after a date
specified in such notice, which shall not be fewer than 30 days from the date of
such publication or mailing, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 13.05. Discharge of Indenture as to Certain Series of
Securities. (a) If this Section 13.05 is specified in the manner contemplated by
Section 2.01 to be applicable to the Securities of any series, the Company shall
be deemed to have paid and discharged the entire Indebtedness on all the
Securities of any such series at the time Outstanding and, upon Company Order,
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction, discharge and defeasance of such Indebtedness, when:
(1) either:
(A) with respect to all Securities of such series at the
time Outstanding, the Company shall have deposited or caused to be
deposited irrevocably with the Trustee for such series as trust
funds in trust (1) in the case of Securities denominated in a
foreign currency, money in such foreign currency, Foreign Government
Obligations of the foreign government or government issuing such
foreign currency or a combination thereof, (2) in the case of
Securities denominated in U.S. dollars, U.S. Government Obligations
or a combination thereof, in each case in an amount that through the
payment of interest and principal and premium in respect thereof in
accordance with their terms will provide (without any reinvestment
of such interest or principal), not later than one Business Day
before the due date of any payment in respect of the Securities for
such series, money
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in an amount sufficient (in the case of a deposit including any U.S.
Government Obligations, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee at or prior to the
time of such deposit) to pay and discharge each installment of
principal of (including any mandatory sinking fund payments), and
premium, if any, and interest on, the Outstanding Securities of such
series on the dates such installments of principal and premium, if
any, and interest are due or upon the Stated Maturity, Redemption
Date or repayment at the option of a holder of such series, as
applicable; or
(B) the Company properly has fulfilled such other means
of satisfaction and discharge as is specified, in the manner
contemplated by Section 2.01, to be applicable to the Securities of
such series;
(2) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, would become an Event of
Default with respect to the Securities of such series shall have occurred
and be continuing on the date of such deposit as evidenced to the Trustee
in an Officers' Certificate delivered concurrently with such deposit to
the Trustee;
(3) the Company shall have paid or caused to be paid all other
sums payable with respect to the Securities of such series at the time
Outstanding;
(4) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, or the
Company has obtained a waiver of any such breach, violation or default;
(5) unless otherwise specified in the manner contemplated by
Section 2.01, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as
a result of the Company's exercise of its option under this Section 13.05
and will be subject to Federal income tax on the same amount and in the
manner and at the same times as would have been the case if such option
had not been exercised and, in the case of the Securities of such
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series being discharged, accompanied by a ruling to that effect received
from or published by the Internal Revenue Service; and
(6) the Company shall have 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,
discharge and defeasance of the entire Indebtedness on all Securities of
any such series at the time Outstanding have been complied with.
(b) "U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America which in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof. "Foreign Government Obligations" means securities denominated in a
foreign currency that are (1) direct obligations of a foreign government for the
payment of which its full faith and credit is pledged or (2) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
a foreign government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such foreign government, that, in either
case, under clauses (1) and (2) are not callable or redeemable at the option of
the issuer thereof.
(c) Upon the satisfaction of the conditions set forth in this
Section 13.05 with respect to all the Securities of any series at the time
Outstanding, the terms and conditions of such series, including the terms and
conditions with respect thereto set forth in this Indenture, shall no longer be
binding upon, or applicable to, the Company (except as to any surviving rights
of conversion or registration of transfer or exchange and rights relating to
mutilated, destroyed, lost and stolen Securities pursuant to Section 2.07 of
Securities of such series expressly provided for herein or in the form of
Security of such series); provided, however, that the Company shall not be
discharged from any payment obligations in respect of Securities of such series
which are deemed not to be Outstanding under clause (c) of the definition
thereof if such obligations continue to be valid obligations of the Company
under applicable law.
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SECTION 13.06. Repayment to Company of Deposits Made Pursuant to
Section 13.05. After the payment in full of the entire Indebtedness of a series
of Securities with respect to which a deposit has been made with the Trustee
pursuant to Section 13.05, the Trustee and any Paying Agent for such series upon
Company Order promptly shall return to the Company any money or U.S. Government
Obligations held by them that are not required for the payment of the principal
of and any premium and interest on the Securities of such series.
SECTION 13.07. Deposits Irrevocable. Any deposit referred to in
Section 13.01 and Section 13.05(a)(1)(A) shall be irrevocable. If any Securities
of a series with respect to which a deposit has been made pursuant to Section
13.01 and Section 13.05(a)(1)(A) at the time Outstanding are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
Company shall make such arrangements as are satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company.
SECTION 13.08. Reinstatement. If the Trustee is unable to apply any
money or U.S. Government Obligations in accordance with Section 13.01 or Section
13.05 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 13.01 or Section 13.05 until such time as the Trustee is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 13.01 or Section 13.05.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Securities Solely Corporate
Obligations. No recourse for the payment of the principal of or any premium or
interest on any Security, or for any claim based on any Security or coupon or
otherwise in respect of any Security or coupon, and no recourse under or upon
any obligation, covenant or agreement of the Company in this Indenture or in any
Security, or because of the creation of any Indebtedness represented by any
Security or coupon, shall be had against any incorporator, stockholder,
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officer or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, 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 all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities and coupons.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements contained in this Indenture by
the Company shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. Official Acts by Successor Corporation. Any act or
proceeding by any provisions of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 15.03. Addresses for Notices, etc. Any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Securities on the Company may be
given or served by being deposited postage prepaid by registered or certified
mail in a post office letter box addressed (until another address is filed by
the Company with the Trustee) to Blyth Industries, Inc., 100 Field Point Road,
Greenwich, Connecticut 06830, Attention: Treasurer. Any notice, direction,
request or demand by any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at: First Union National Bank, 10 State House Square, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration.
SECTION 15.04. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
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SECTION 15.05. Evidence of Compliance with Conditions Precedent.
Upon any application or request by the Company to the Trustee to take any action
under any of the provisions 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 have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than certificates provided pursuant to
Section 4.04, which certificates shall comply with the requirements of Section
4.04) shall include: (i) a statement that the person making such certificate or
opinion has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinion contained in such certificate or opinion are based; (iii) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
The provisions of this Section 15.05 are in furtherance of and
subject to Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act.
SECTION 15.06. Legal Holidays. Unless otherwise specified in the
manner contemplated by Section 2.01, in any case where the Stated Maturity of
principal of or any premium or interest on the Securities will not be a Business
Day, payment of such principal, premium or interest need not be made on such
date but may be made on the next following Business Day with the same force and
effect as if made on the Stated Maturity and, if such principal, premium or
interest is duly paid on such next following Business Day, no interest shall
accrue for the period from and after such Stated Maturity to such next following
Business Day.
SECTION 15.07. Trust Indenture Act to Control. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
provision of the Trust Indenture Act, such required provision shall control.
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SECTION 15.08. No Security Interest Created. Nothing in this
Indenture or in the Securities or coupons, expressed 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 located.
SECTION 15.09. Benefits of Indenture. Nothing in this Indenture or
in the Securities or coupons, express or implied, shall give to any Person,
other than the parties to this Indenture, any Paying Agent, any Security
registrar and their successors under this Indenture and the holders of
Securities or coupons any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 15.10. Table of Contents, Headings, etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions of this Indenture.
SECTION 15.11. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
--------------------------------------------------
FIRST UNION NATIONAL BANK hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions set forth above
in this Indenture.
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IN WITNESS WHEREOF, BLYTH INDUSTRIES, INC. has caused this Indenture
to be signed and acknowledged by its President or a duly authorized Vice
President, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or Assistant Secretary, and FIRST UNION NATIONAL BANK
has caused this Indenture to be signed and acknowledged by ____________, and has
caused its corporate seal to be affixed hereunto and the same to be attested by
____________, as of the day and year first written above.
BLYTH INDUSTRIES, INC.
By:
-----------------------------------
[Name]
[Title]
[SEAL]
Attest:
- --------------------------------
Secretary
FIRST UNION NATIONAL BANK
By:
-----------------------------------
[Name]
[Title]
[SEAL]
Attest:
- --------------------------------
Title:
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EXHIBIT 5
Finn Dixon & Herling LLP
One Landmark Square
Stamford, Connecticut 06901
May 4, 1999
Blyth Industries, Inc.
100 Field Point Road
Greenwich, Connecticut 06830
Re: BLYTH INDUSTRIES, INC. -- REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as special counsel to Blyth Industries, Inc., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") of the Company covering
$250,000,000 aggregate principal amount of the Company's debt securities (the
"Debt Securities"), which is being filed with the Securities and Exchange
Commission (the "Commission") on the date hereof, relating to the issuance
from and after the date hereof of up to $250,000,000 in aggregate principal
amount of Debt Securities pursuant to that certain Indenture to be entered
into between the Company and First Union National Bank, as Trustee (the
"Indenture"). Capitalized terms used herein without definition shall have the
meanings assigned to them in, or by reference in, the Indenture.
In rendering the opinion set forth herein, we have examined a signed
copy of the Registration Statement and originals, telecopies or photocopies,
certified or otherwise identified to our satisfaction, of such records of the
Company and all such agreements, certificates of public officials, certificates
of officers or representatives of the Company and others, and such other
documents, certificates and corporate or other records as we have deemed
necessary or appropriate as a basis for this opinion. As to all matters of fact
(including, without limitation, matters of fact set forth in this opinion), we
have relied upon and assumed the accuracy of statements and representations of
officers and other representatives of the Company and others. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons signing or delivering any instrument, the authority
of all persons signing the Registration Statement, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as copies, certified or otherwise, and the
authenticity of the originals of such documents.
Based upon the foregoing, and in reliance thereon, and subject to
the qualifications, assumptions and exceptions heretofore and hereinafter set
forth, we are of the opinion that the Debt Securities and the Indenture have
been duly authorized and, when (a) the Indenture is duly executed and
delivered by the Company substantially in the form attached as Exhibit 4 to
the Registration Statement, (b) the Indenture is duly authorized, executed
and delivered by the Trustee substantially in the form attached as Exhibit 4
to the Registration Statement and (c) the Debt Securities are duly executed
by the Company and authenticated in accordance with the terms of the
Indenture and issued and delivered in accordance with the terms of the
Indenture against payment therefor as contemplated by the Registration
Statement, the Debt Securities will constitute valid and binding obligations
of the Company.
<PAGE>
Blyth Industries Inc.
May 4, 1999
Page 2
We do not express, or purport to express, any opinion with respect to
the laws of any jurisdiction other than the laws of the State of Connecticut,
the General Corporation Law of the State of Delaware and the federal securities
laws of the United States of America.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and further consent to the use of our name under the
heading "Legal Counsel" in the Registration Statement and the Prospectus which
forms a part thereof. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder by the Securities and Exchange Commission. This opinion is given as
of the date hereof and we assume no obligation to update or supplement this
opinion to reflect any facts or circumstances which may hereafter occur or come
to our attention or any changes in law which may hereafter occur.
Very truly yours,
/s/ Finn Dixon & Herling LLP
<PAGE>
EXHIBIT 12
BLYTH INDUSTRIES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In thousands)
<TABLE>
<CAPTION>
1995 1996 1997 1998 1999
------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C>
Pre-tax income from continuing operations $22,752 $42,474 $71,939 $89,930 $122,890
======= ======= ======= ======= ========
Fixed charges:
Interest expense on all
indebtedness and amortization
of debt financing costs (A) 1,240 2,668 3,567 4,837 6,698
Estimate of interest within rental expense -12% 270 569 759 969 1,523
------- ------- ------- ------- --------
Total fixed charges $ 1,510 $ 3,237 $ 4,326 $ 5,806 $ 8,221
======= ======= ======= ======= ========
Earnings before income taxes
and fixed charges $24,262 $45,711 $76,265 $95,736 $131,111
======= ======= ======= ======= ========
Ratio of earnings to fixed charges 16.1 14.1 17.6 16.5 15.9
======= ======= ======= ======= ========
</TABLE>
(A) Comprised of interest expense from financial statements plus
amortization of bank fees for Private Placement and Credit Facility.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated March 25, 1999, except
for Note 12 and Note 15, as to which the date is April 9, 1999, relating to the
financial statements, which appear in the 1999 Annual Report to Shareholders of
Blyth Industries, Inc. and Subsidiaries, which is incorporated by reference in
the Blyth Industries, Inc. and Subsidiaries' Annual Report on Form 10-K for the
year ended January 31, 1999. We also consent to incorporation by reference of
our report dated March 25, 1999 relating to the financial statement schedule,
which appears in such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
May 3, 1999
Chicago, Illinois
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference into this Registration
Statement of Blyth Industries, Inc. on Form S-3 of our report dated March 28,
1997, on our audit of the consolidated financial statements and financial
statement schedule of Blyth Industries, Inc. and Subsidiaries for the year ended
January 31, 1997, which report is included in Blyth Industries, Inc.'s Annual
Report on Form 10-K for the fiscal year ended January 31, 1999.
/s/ Grant Thornton LLP
----------------------
GRANT THORNTON LLP
Chicago, Illinois
April 30, 1999
<PAGE>
EXHIBIT 24.1
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 25th
day of April, 1999.
/s/ Howard E. Rose
--------------------
Name: Howard E. Rose
<PAGE>
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 23rd
day of April, 1999.
/s/ Roger A. Anderson
-----------------------
Name: Roger A. Anderson
<PAGE>
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 23rd
day of April, 1999.
/s/ John W. Burkhart
----------------------
Name: John W. Burkhart
<PAGE>
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 26th
day of April, 1999.
/s/ Pamela M. Goergen
-----------------------
Name: Pamela M. Goergen
<PAGE>
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 27th
day of April, 1999.
/s/ Neal I. Goldman
---------------------
Name: Neal I. Goldman
<PAGE>
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 26th
day of April, 1999.
/s/ Roger H. Morley
---------------------
Name: Roger H. Morley
<PAGE>
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 27th
day of April, 1999.
/s/ John E. Preschlack
------------------------
Name: John E. Preschlack
<PAGE>
BLYTH INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director and/or officer
of BLYTH INDUSTRIES, INC., a Delaware corporation (the Company"), which is about
to file with the Securities and Exchange Commission under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a Registration
Statement for the registration of up to $250,000,000 aggregate principal amount
of debt securities, of the Company, or if issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $250,000,000 (all in United States dollars or in an equivalent
amount in another currency or composite currency) (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, RICHARD T.
BROWNING and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and
agent, with the full power of substitution, for him or her in any and all
capacities, to sign the Registration Statement and any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462(b) of
the Securities Act) or supplements to the Registration Statement and to file the
same, with all exhibits thereto (including, without limitation, this power of
attorney) and other instruments and documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary and appropriate to be done with respect to the Registration Statement
or any amendments or supplements thereto, including without limitation to make
any and all state securities law or blue sky filings, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 27th
day of April, 1999.
/s/ Frederick H. Stephens, Jr.
--------------------------------
Name: Frederick H. Stephens, Jr.
<PAGE>
EXHIBIT 24.2
BLYTH INDUSTRIES, INC.
SECRETARY'S CERTIFICATE
I, Bruce D. Kreiger, do hereby certify the following:
1. I am the duly elected Secretary of Blyth Industries, Inc.
(the "Company").
2. Attached hereto as Exhibit A is a true, correct and complete copy of
certain resolutions of the Board of Directors of the Company adopted at a
meeting of the Board of Directors on April 14, 1999; such resolutions have been
neither rescinded nor amended.
3. Attached hereto as Exhibit B is a true, correct and complete copy of
the Unanimous Written Consent of the Board of Directors of the Company to the
adoption of certain resolutions attached thereto as Exhibit A; such resolutions
have been neither rescinded nor amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of May,
1999.
/s/ Bruce D. Kreiger
--------------------
Bruce D. Kreiger
<PAGE>
EXHIBIT A
BLYTH INDUSTRIES, INC.
APRIL 1999 BOARD OF DIRECTORS MEETING
[RESOLUTIONS RELATING TO PUBLIC OFFERING OF DEBT SECURITIES]
WHEREAS, the Board of Directors of the Corporation has determined that
it is in the best interests of the Corporation that it obtain financing in the
public debt markets through a registered debt offering (the "Offering"); and
WHEREAS, the Board of Directors desires to delegate authority to a
special committee of the Board to take such actions, not inconsistent with the
resolutions set forth below, as may be necessary and proper in connection with
the making of the Offering and to authorize certain officers of the Corporation
to sign on behalf of the Corporation and certain of its directors and officers a
registration statement, and any amendments thereto, for the registration of the
offer and sale of debt securities of the Corporation under the Securities Act of
1933, as amended (the "Securities Act"), and other applicable law.
NOW, THEREFORE, BE IT:
RESOLVED, that the Corporation hereby authorizes the registration under
the Securities Act of $130 million in aggregate principal amount of debt
securities, in order to offer, issue and sell from time to time up to $130
million in aggregate principal amount of debt securities of the Corporation or,
if issued at an original issue discount, such greater principal amount as shall
result in an aggregate initial public offering price of $130 million (all in
United States dollars or an equivalent amount in another currency or composite
currency) to be made (i) directly to purchasers, (ii) through agents designated
from time to time, (iii) through underwriters or a group of underwriters
represented by one or more particular underwriter(s), or (iv) to dealers, from
and after the date hereof on a continuing basis (such issue of debt securities
being hereinafter sometimes referred to in these resolutions as the "Debt
Securities");
RESOLVED, that a committee (the "Debt Offering Committee") of this
Board of Directors be, and it hereby is, established; that the Debt Offering
Committee shall consist of two members; and that the following individuals be,
and each of them hereby is, appointed to serve as a member of the Debt Offering
Committee, to hold such position until such individual's successor shall have
been duly appointed and shall qualify, or as otherwise provided by this Board:
Robert B. Goergen
Roger A. Anderson
RESOLVED, that the Debt Offering Committee shall have and may exercise
all the powers and authority of the Board in the management of the business and
affairs of the Corporation insofar as it relates to the making of the Offering,
without the need for any further action on the part of the Board, including,
without limitation, the power and authority (a) to determine (i) the interest
that is to be paid in respect of the Debt Securities, (ii) the price to the
public of the Debt Securities, (iii) the covenants of the Corporation that are
to be included in the indenture pursuant to which the Debt Securities will be
issued, as well as the other terms and provisions of such indenture; the form,
terms and provisions of the
<PAGE>
certificate(s) evidencing the Debt Securities; the selection of the indenture
trustee, registrar, paying agent, authenticating agent and exchange rate agent,
if any; the selection of the selling agents or underwriters, if any, for the
Offering and the form, terms and provisions of the selling agency or
underwriting agreement between the Corporation and such selling agents or
underwriters; (b) to authorize any proper officer of the Corporation to take
such actions as may be necessary or appropriate in connection with the making of
the Offering, and (c) to take such other actions as the Debt Offering Committee
may deem necessary or appropriate in connection with the making of the Offering.
RESOLVED FURTHER, that the proper officers of the Corporation are
hereby authorized to proceed with the preparation of a registration statement on
Form S-3 or other appropriate form (such registration statement being
hereinafter referred to in these resolutions as the "Registration Statement")
for the registration under the Securities Act of the offer and sale of any or
all of the Debt Securities;
RESOLVED FURTHER, that Robert B. Goergen and Richard T. Browning (the
"Authorized Officers"), or either of them, be, and they hereby are authorized to
approve the forms, terms and provisions of the form of Registration Statement
and the form of Preliminary Prospectus, and once so approved, each of Robert B.
Goergen, Richard T. Browning and Bruce D. Kreiger, with full power to act
without the others, be, and each hereby is, authorized (i) to sign, in the name
and on behalf of the Corporation, the Registration Statement and any amendments
thereto as any of them may approve, in such form as the officer executing the
Registration Statement or any such amendment may approve, with any changes
therein as he or she may approve, such execution to be conclusive evidence of
such approval, and (ii) to file the Registration Statement or amendment and any
prospectus (a "Prospectus") appropriate to offer the Debt Securities with the
Securities and Exchange Commission (the "Commission");
RESOLVED FURTHER, that each of Robert B. Goergen, Richard T. Browning
and Bruce D. Kreiger, with full power to act with or without the others, be, and
each hereby is authorized to sign the Registration Statement covering the
registration under the Securities Act of the offer and sale of the Debt
Securities and any and all amendments (including post-effective amendments) to
the Registration Statement, on behalf of and as true and lawful attorney-in-fact
or attorneys-in-fact for the Corporation and on behalf of and as true and lawful
attorney-in-fact or attorneys-in-fact for the Chief Executive Officer and/or the
Chief Financial Officer and/or the Chief Accounting Officer and/or other
officers of the Corporation, including, without limitation, the Chairman and/or
the Vice Chairman and/or the President and/or each Vice President and/or the
Treasurer and/or the Secretary and/or the Assistant Secretary (in attestation of
the corporate seal of the Corporation or otherwise);
RESOLVED FURTHER, that each of Robert B. Goergen and Bruce D. Kreiger
is hereby designated an agent of the Corporation to receive any and all notices
and communications from the Commission relating to the Registration Statement,
any amendments thereto and any Prospectus or supplement thereto, and that there
are hereby conferred upon Robert B. Goergen and Bruce D. Kreiger the powers
enumerated in Rule 478 promulgated under the Act;
RESOLVED FURTHER, that each of Robert B. Goergen, Richard T. Browning
and Bruce D. Kreiger be, and hereby is, authorized to appear on behalf of the
Corporation before the Commission in connection with any matter relating to the
Registration Statement and any amendment thereto;
<PAGE>
RESOLVED FURTHER, that it may be desirable and in the best interest of
the Corporation that the Debt Securities from time to time be qualified or
registered for sale in various states; that the Chairman, the President, or any
Vice President and the Secretary or any Assistant Secretary hereby are
authorized to determine the states in which appropriate action shall be taken to
qualify or register for sale all or such part of the Debt Securities as said
officers may deem advisable in order to comply with the applicable laws of any
such states, and in connection therewith to execute and file all requisite
papers and documentation, including without limitation, applications, reports,
surety bonds, irrevocable consents, and appointments of attorneys for service of
process, and the execution by such officers of any such paper or document or the
doing by them of any act in connection with the foregoing matters shall
conclusively establish their authority therefor from the Corporation and the
approval and ratification by the Corporation of the papers and documents so
executed and the action so taken; and that the Board of Directors hereby adopts
the form of any and all resolutions required in connection with any such
applications, reports, surety bonds, irrevocable consents and appointments of
attorneys for service of process and other papers and instruments as of the time
so required if (i) in the opinion of the officers of the Corporation so acting,
the adopting of such resolutions are necessary or advisable, and (ii) the
Secretary of the Corporation evidences such adoption by filing with the minutes
of this meeting copies of such resolutions, which shall thereupon be deemed to
be adopted by the Board of Directors and incorporated in the minutes as a part
of this resolution and with the same force and effect as if presented at this
meeting;
RESOLVED FURTHER, that the proper officers of the Corporation are, and
each of them hereby is, empowered to approve or authorize, as the case may be,
such further action and the preparation, execution, and delivery of all of the
foregoing instruments and any further agreements, instruments and documents, and
that the proper officers of the Corporation and its counsel are hereby
authorized to take all such further action and to execute and deliver all such
further instruments and documents, in the name and on behalf of the Corporation
and under its corporate seal or otherwise, and to pay all such expenses and
issue and other taxes, as in their judgment shall be necessary, proper, or
advisable in order to fully carry out the intent and accomplish the purposes of
the foregoing resolutions and each of them; and
RESOLVED FURTHER, that all actions heretofore or hereafter taken by any
officer or officers of the Corporation consistent with the terms of the
foregoing resolutions are hereby ratified and confirmed as the act and deed of
the Corporation.
<PAGE>
EXHIBIT B
UNANIMOUS WRITTEN CONSENT
OF THE
BOARD OF DIRECTORS
OF
BLYTH INDUSTRIES, INC.
THE UNDERSIGNED, constituting all of the directors of BLYTH INDUSTRIES,
INC., a Delaware corporation (the "Corporation"), and acting pursuant to Section
141(f) of the Delaware General Corporation Law, do hereby consent to the
adoption of the resolutions set forth on Exhibit A hereto.
This Consent may be executed in one or more counterparts, each of which
shall be deemed an original but all of which, when taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Consent as of
the 22nd day of April, 1999.
/s/ Roger A. Anderson /s/ Roger H. Morley
- ---------------------- ------------------------------
Roger A. Anderson Roger H. Morley
/s/ John W. Burkhart /s/ John E. Preschlack
- ---------------------- ------------------------------
John W. Burkhart John E. Preschlack
/s/ Pamela M. Goergen /s/ Howard E. Rose
- ---------------------- ------------------------------
Pamela M. Goergen Howard E. Rose
/s/ Robert B. Goergen /s/ Frederick H. Stephens, Jr.
- ---------------------- ------------------------------
Robert B. Goergen Frederick H. Stephens, Jr.
/s/ Neal I. Goldman
- ----------------------
Neal I. Goldman
<PAGE>
EXHIBIT A
WHEREAS, the Board of Directors of the Corporation has previously
determined that it is in the best interests of the Corporation that it obtain
financing in the public debt markets through a registered debt offering (the
"Offering"); and
WHEREAS, the Board of Directors desires to ratify and confirm its
resolutions of April 14, 1999 and to authorize an increase in the size of the
Offering to $250 million.
NOW, THEREFORE, BE IT:
RESOLVED, that the resolutions of the Board of Directors relating to
the Offering, as adopted at a meeting held on April 14, 1999, are hereby
ratified, confirmed and approved, provided that the Board hereby authorizes an
increase in the aggregate principal amount of debt securities to be registered
under the Securities Act of 1933, as amended, from $130 million to a maximum of
$250 million; and
RESOLVED FURTHER, that all actions heretofore or hereafter taken by the
Debt Offering Committee of the Board of Directors or by any officer or officers
of the Corporation consistent with the terms of the foregoing resolutions and/or
the resolutions of the Board adopted on April 14, 1999 are hereby ratified and
confirmed as the act and deed of the Corporation.
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE
ACT OF 1939, AS AMENDED, OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------------------
FIRST UNION NATIONAL BANK
(Exact name of Trustee as specified in its charter)
UNITED STATES NATIONAL BANK 56-0900030
(Jurisdiction of incorporation (IRS employer
if not a national bank) identification no.)
FIRST UNION NATIONAL BANK
FIRST UNION NATIONAL BANK
230 SOUTH TRYON STREET, 9TH FLOOR
CHARLOTTE, NC 28202
(704) 590-7600
ATTN: GENERAL COUNSEL
(Address of principal executive offices)
----------------------
SAME AS ABOVE
(Name, address and telephone number, including area code, of
Trustee's agent for service)
----------------------
<TABLE>
<CAPTION>
IRS EMPLOYER
EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS STATE OR OTHER JURISDICTION OF IDENTIFICATION
CHARTER INCORPORATION OR ORGANIZATION NUMBER
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
Blyth Industries, Inc. Delaware 36-2984916
</TABLE>
100 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
(203) 661-1926
(Address, including zip code, and telephone number,
including area code, of Obligor's principal
executive offices)
----------------------
$250,000,000 Debt Securities
(Title of the indenture securities)
----------------------
<PAGE>
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>
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission Division
of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS. If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None.
(See Note 1 on Page 4)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is Trustee, Items 3 through 15 are not required
herein.
16. LIST OF EXHIBITS.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union National
Bank as now in effect, which contain the authority to
commence business and a grant of powers to exercise corporate
trust powers, is filed as an Exhibit to Form T-1 in
connection with Registration Statement Number 333-24773 is
filed with the Securities and Exchange Commission on March
20, 1998, and incorporated by reference herein.
2. A copy of the certificate of authority of the Trustee to
commence business, if not contained in the Articles of
Association is filed as an Exhibit to Form T-1 in connection
with Registration Statement Number 333-24773 filed with the
Securities and Exchange Commission on March 20, 1998, and is
incorporated by reference herein.
3. A copy of the authorization of the Trustee to exercise
corporate trust powers, if such authorization is not
contained in the documents specified in Exhibits (1) or (2)
above, is filed as an Exhibit to Form T-1 in connection with
Registration Statement Number
<PAGE>
333-24773 filed with the Securities and Exchange Commission
on March 20, 1998, and is incorporated by reference herein.
4. A copy of the existing By-laws of the Trustee, or instruments
corresponding thereto filed as an Exhibit to Form T-1 in
connection with Registration Statement Number 333-24773 filed
with the Securities and Exchange Commission on March 20,
1998, and is incorporated by reference herein.
5. Inapplicable.
6. The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939 is included at Page 4 of this
Form T-1 Statement.
7. A copy of the latest report of condition of the Trustee, is
filed as an Exhibit to Form T-1 in connection with
Registration Statement Number 333-72899 on February 24, 1999,
and is incorporated by reference.
8. Inapplicable.
9. Inapplicable.
<PAGE>
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment
by the Trustee of all facts on which to base a responsible answer to Item 2, the
answer to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Hartford, and State of Connecticut, on the 3rd day of May, 1999.
FIRST UNION NATIONAL BANK,
(Trustee)
By: /s/ W. Jeffrey Kramer
---------------------
W. Jeffrey Kramer
Vice President
CONSENT OF TRUSTEE
Under Section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by the Obligors of the Debt
Securities, First Union National Bank as the Trustee herein named, hereby
consents that reports of examinations of said Trustee by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ W. Jeffrey Kramer
---------------------
W. Jeffrey Kramer
Vice President
Dated: May 3, 1999
