<PAGE> 1
As filed with the Securities and Exchange Commission on April 15, 1998.
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Boise Cascade Office Products Corporation
(Exact name of registrant as specified in charter)
Delaware 82-0477390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 West Bryn Mawr Avenue
Itasca, Illinois 60143
(630) 773-5000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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JOHN W. HOLLERAN
General Counsel
Boise Cascade Office Products Corporation
1111 West Jefferson Street
P.O. Box 50
Boise, Idaho 83728-0001
(208) 384-7704
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Robert E. Buckholz, Jr.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement as determined in
light of market conditions.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
-1-
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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 ]
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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. [ ]
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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. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Title of Each Class Amount Offering Maximum
of Securities to be Price Aggregate Amount of
to be Registered Registered Per Unit* Offering Price* Registration Fee
- --------------- ---------- ---------- --------------- ----------------
<S> <C> <C> <C> <C>
Debt Securities $300,000,000** 100%*** $300,000,000*** $ 88,500
</TABLE>
*Estimated solely for the purpose of calculating the registration fee.
**Or if any debt securities (1) are denominated or payable in a
foreign or composite currency or currencies, such amount as shall
result in an aggregate initial offering price equivalent to
$300,000,000 at the time of initial offering or (2) are issued at an
original issue discount, such greater principal amount as shall result
in an aggregate initial offering price of $300,000,000.
***Exclusive of accrued interest, if any.
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 under Section 8(a) of the Securities
Act of 1933 or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a), may determine.
-2-
<PAGE> 3
The information in this Prospectus is incomplete. 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 nor is
it seeking an offer to buy these securities in any state where the offer or sale
is not permitted.
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<PAGE> 4
SUBJECT TO COMPLETION, DATED APRIL 15, 1998
BOISE CASCADE OFFICE PRODUCTS CORPORATION
----------------------
BOISE LOGO
DEBT SECURITIES
----------------------
Boise Cascade Office Products Corporation (the "Company," "we," or "us")
may periodically offer debentures, notes, or other unsecured types of debt in
one or more series ("Debt Securities"). We may offer Debt Securities to raise up
to $300,000,000 (or, if we sell the Debt Securities in foreign or composite
currencies, whatever the equivalent may be at the time of the offering). Terms
of the Debt Securities will reflect market conditions at the time of sale.
We may sell the Debt Securities directly, through agents, to or through
underwriting syndicates led by one or more managing underwriters, or to or
through one or more underwriters acting alone. If we involve any of our agents
or any underwriters in the sale of these securities, then we will include their
names and any applicable commissions or discounts in a prospectus supplement.
Any underwriters, dealers, or agents participating in the offering will be
"underwriters" as defined by the Securities Act of 1933.
----------------------
Along with this Prospectus, the Company will provide a supplement to this
Prospectus for each offering of Debt Securities ("Prospectus Supplement"). The
Prospectus Supplement will describe the amounts, prices, and terms of the Debt
Securities included in that offering ("Offered Securities"). It will also state
the net proceeds the Company will receive from the sale. The Prospectus
Supplement may also update information in this Prospectus. It is important for
you to read both this Prospectus and the Prospectus Supplement before you
invest.
We will issue the Offered Securities in the form of one or more Global
Securities deposited with The Depository Trust Company, New York, New York
("DTC").
----------------------
Neither the SEC nor any state securities commission has approved these
securities. Similarly, these organizations have not determined that this
Prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
This Prospectus is dated: April 15, 1998.
<PAGE> 5
AVAILABLE INFORMATION
The Company files annual, quarterly and special reports, proxy statements,
and other information with the SEC. You may read and copy any document we file
at the public reference rooms maintained by the SEC at: Judiciary Plaza, 450
Fifth Street, N.W., Room 1024, Washington, D.C., 20549; 7 World Trade Center,
New York, New York, 10048; and 500 West Madison Street, Suite 1400, Chicago,
Illinois, 60661. Copies of materials filed with the SEC can be obtained from the
Public Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. 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 from the SEC's web site at
http://www.sec.gov.
Reports, proxy and information statements, and other information concerning
the Company can also be inspected at the office of the New York Stock Exchange
at 20 Broad Street, New York, NY 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered part of this Prospectus, and later information filed with the SEC
will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed:
1. Annual report on Form 10-K for the year ended December 31, 1997;
and
2. The portions of the Company's Proxy Statement on Schedule 14A for
the annual meeting of shareholders held on April 21, 1998, that
have been incorporated by reference into the 10-K for the year
ended December 31, 1997.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Investor Relations Department
Boise Cascade Office Products Corporation
800 W. Bryn Mawr Avenue
Itasca, Illinois 60143-1594
630/775-4228
http://www.bcop.com
You should rely only on the information incorporated by reference or
provided in this Prospectus or the Prospectus Supplement. We have not authorized
anyone to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this Prospectus or the Prospectus Supplement is
accurate as of any date other than the date on the front of the document.
THE COMPANY
Boise Cascade Office Products Corporation is one of the world's premier
business-to-business distributors of products for the office, with operations in
Australia, Canada, France, Germany, Spain, the United Kingdom, and the United
States. We market to large, medium-sized and small businesses as well as home
offices, through both a direct sales force and a catalog marketing program. We
sell a broad line of branded and private label consumable office supplies,
furniture, paper, computer-related items and promotional products. We purchase
most of our products directly from manufacturers and distribute them directly to
end-users.
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We are a Delaware corporation, and our principal executive office is
located at 800 West Bryn Mawr Avenue, Itasca, Illinois 60143-1594, telephone
630/773-5000. All references to the Company refer, unless the context otherwise
requires, to Boise Cascade Office Products Corporation and its consolidated
subsidiaries.
USE OF PROCEEDS
Unless otherwise stated in the Prospectus Supplement, the net proceeds from
the sale of the Debt Securities will be used to repay debt and for other
corporate purposes. Those other corporate purposes may include acquisitions,
additions to working capital, and capital expenditures.
RATIO OF EARNINGS TO FIXED CHARGES
The Ratio of Earnings to Fixed Charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED ENDED
DECEMBER 31 MARCH 31
(UNAUDITED) (UNAUDITED)
-------------------- ------------
1995 1996 1997 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)...... 25.4 8.4 5.0 6.9 5.1
==== === === === ===
</TABLE>
(1) Earnings consist of pre-tax earnings plus fixed charges. Fixed charges
consist of interest on indebtedness, amortization of debt costs, and that
portion of rentals representative of interest. Interest expense for
operating leases with terms of one year or longer is based on an imputed
interest rate for each lease.
For current information on the Ratio of Earnings to Fixed Charges, please
see our most recent Form 10-K. See "Available Information" and "Incorporation of
Certain Documents by Reference."
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture ("Indenture") dated
as of March 31, 1998, between the Company and U.S. Bank Trust National
Association, Trustee ("Trustee"). The Indenture is filed as an exhibit to the
Registration Statement. All section references are to sections of the Indenture.
All capitalized terms have the meanings specified in the Indenture.
Debt Securities may be issued periodically in one or more series. The
Prospectus Supplement will describe the specific information, including amounts,
prices, and terms, for each series of Debt Securities.
General
The Indenture does not limit the amount of securities that the Company may
issue. In addition to the Debt Securities, we may authorize the issuance of
other securities under the Indenture. The securities will be unsecured
obligations of the Company. They will rank on a parity with all our other
unsecured unsubordinated indebtedness.
Each Prospectus Supplement will describe the following terms of the Offered
Securities:
- The title;
- Any limit on the aggregate principal amount;
- The date(s) the principal is payable;
- The interest rate(s), if any, and the date(s) from which the interest
accrues;
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- The dates on which the interest, if any, is payable and the regular
record dates for the interest payment dates;
- Whether the Offered Securities are redeemable at our option and the
redemption price(s) and other redemption terms and conditions;
- Whether we are obligated to redeem or purchase the Offered Securities
according to any sinking fund or similar provision or at the Holder's
option and the price(s), period(s), and terms and conditions of that
redemption or purchase obligation;
- If other than the principal amount, the portion of the principal amount
payable if the maturity of the Offered Securities is accelerated;
- Whether the provisions relating to Satisfaction, Discharge, and
Defeasance Prior to Maturity or Redemption apply;
- If other than United States Dollars, the currency or currencies of
payment of principal and any premium and interest (which may be a
composite currency such as the European Currency Unit);
- If payments are based on an index, the manner in which the amount of
principal payments and any premium and interest is to be determined; and
- Any other terms. (Section 301)
Securities may be issued and sold at a substantial discount below their
principal amount. The Prospectus Supplement will describe any special United
States federal income tax consequences and other considerations which apply to
securities issued at a discount or to any Offered Securities denominated or
payable in a foreign currency or currency unit.
Book-Entry System
The Offered Securities will be issued in the form of one or more fully
registered Global Securities. These will be deposited with, or on behalf of, DTC
and registered in the name of DTC or its nominee. Except as described below, the
Global Securities may be transferred, in whole and not in part, only to DTC or
to another nominee of DTC.
DTC has advised the Underwriters and the Company that it is:
- A limited-purpose trust company organized under the laws of the state of
New York;
- A member of the Federal Reserve System;
- A "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
- A "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934.
DTC was created to hold securities for institutions that have accounts with
DTC ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants through electronic book-entry
changes in participants' accounts. 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. DTC administers
its book-entry system in accordance with its rules and bylaws and legal
requirements.
Upon issuance of a Global Security representing Offered Securities, DTC
will credit (on its book-entry registration and transfer system) the principal
amount to participants' accounts. Ownership of beneficial interests in the
Global Security will be limited to participants or to persons that hold
interests through participants. Ownership of interests in the Global Security
will be shown
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on, and the transfer of those ownership interests will be effected only through,
records maintained by DTC (with respect to participants' interests) and the
participants (with respect to the owners of beneficial interests in the Global
Security). The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of those securities in definitive form. These
limits and laws may impair the ability to transfer beneficial interests in a
Global Security.
So long as DTC, or its nominee, is the registered holder and owner of a
Global Security, DTC or its nominee, as the case may be, will be considered, for
all purposes under the Indenture, the sole owner and holder of the related
Offered Securities. Except as described below, owners of beneficial interests in
a Global Security will not:
- be entitled to have the Offered Securities registered in their names; or
- receive or be entitled to receive physical delivery of certificated
Offered Securities in definitive form.
Each person owning a beneficial interest in a Global Security must rely on DTC's
procedures (and, if such person holds through a participant, on the
participant's procedures) to exercise any rights of an Offered Securities holder
under the Indenture or the Global Security. We understand that under existing
industry practice, if the Company requests any action of Offered Securities
holders or an owner of a beneficial interest in a Global Security desires to
take any action that DTC (as the holder of the Global Security) is entitled to
take, DTC would authorize the participants to take that action and the
participants would authorize their beneficial owners to take the action or would
otherwise act upon the instructions of their beneficial owners.
The Company will pay principal of and interest on Offered Securities to
DTC. We expect that DTC, upon receipt of any payment of principal or interest,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests. We also expect that
payments by participants to owners of beneficial interests in a Global Security
held through them will be governed by standing instructions and customary
practices (as is the case with securities held for customers' accounts in
"street name") and will be the responsibility of the participants. Neither the
Company nor the Trustee will have any responsibility or liability for:
- any aspect of the records relating to, or payments made on account of,
beneficial ownership interests in a Global Security for any Offered
Securities;
- maintaining, supervising, or reviewing any records relating to any
beneficial ownership interests;
- any other aspect of the relationship between DTC and its participants; or
- the relationship between the participants and the owners of beneficial
interests in a Global Security.
Unless and until they are exchanged in whole or in part for certificated
Offered Securities in definitive form, the Global Securities may not be
transferred except as a whole by DTC to its nominee or by its nominee to DTC or
another nominee.
The Offered Securities may be exchanged for certificated Offered Securities
in definitive form in denominations of $1,000 or multiples thereof if:
1. DTC notifies us that it is unwilling or unable to continue as
depositary for the Global Securities or if at any time it ceases to be a
clearing agency registered under the Securities Exchange Act of 1934;
2. The Company decides at any time not to have all of the Offered
Securities represented by the Global Securities and so notifies the
Trustee; or
3. An Event of Default has occurred and is continuing with respect to
the Offered Securities.
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If there is such an exchange, certificated Offered Securities will be
issued in authorized denominations and registered in such names as DTC directs.
Subject to the foregoing, the Global Securities are not exchangeable, except for
a Global Security(ies) of the same aggregate denomination to be registered in
DTC's or its nominee's name.
COVENANTS OF THE COMPANY
Certain Definitions Applicable to Covenants
"Attributable Debt" means the total net amount of rent required to be paid
during the remaining primary term of any particular lease under which any person
is at the time liable, discounted at the rate per annum equal to the weighted
average interest rate borne by the Debt Securities outstanding under the
Indenture. (Section 101)
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting:
(1) all liabilities, other than (a) deferred income taxes, (b) Funded Debt, and
(c) shareholders' equity, and (2) all goodwill, trade names, trademarks,
patents, organization expenses, and other like intangibles of the Company and
its consolidated subsidiaries, all as set forth in the most recent quarterly
balance sheet of the Company and its consolidated subsidiaries. (Section 101)
"Funded Debt" means (1) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the borrower's option, and (2)
rental obligations payable more than 12 months from such date under leases which
are capitalized in accordance with generally accepted accounting principles.
(Section 101)
"Principal Property" means any distribution center, warehouse or other
facility owned by the Company or any Restricted Subsidiary which is located
within the present 50 states of the United States and the gross book value of
which (without deduction of any depreciation reserves) on the date as of which
the determination is being made exceeds 1 1/2% of Consolidated Net Tangible
Assets, other than properties or any portion of a particular property which in
the opinion of the Board of Directors is not of material importance to the
Company's business. (Section 101)
"Restricted Subsidiary" means a Subsidiary of the Company (1) substantially
all the property of which is located, or substantially all of the business of
which is carried on, within the present 50 states of the United States, (2)
which owns a Principal Property, and (3) which is not primarily engaged in the
development and sale or financing of real property. (Section 101)
"Secured Debt" means Debt secured by a Mortgage on any Principal Property
of the Company or any Restricted Subsidiary or on any shares of stock or Debt of
a Restricted Subsidiary, as set forth in Section 1004 of the Indenture. (Section
101)
"Subsidiary" of the Company means a corporation more than 50% of the voting
stock of which is owned directly or indirectly by the Company, one or more
Subsidiaries of the Company, or the Company and one or more Subsidiaries.
(Section 101)
Restrictions on Secured Debt
Neither the Company nor any Restricted Subsidiary shall incur, issue,
assume, or guarantee any indebtedness for money borrowed ("Debt"), secured by a
mortgage, pledge or lien ("Mortgage") on any Principal Property of the Company
or any Restricted Subsidiary, or on any share of stock or Debt of any Restricted
Subsidiary, unless the Company secures or causes such Restricted
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Subsidiary to secure the Debt Securities issued under the Indenture equally and
ratably with (or, at the Company's option, prior to) such Secured Debt, or
unless
(x) the aggregate amount of all such Secured Debt, together with
(y) all Attributable Debt of the Company and its Restricted Subsidiaries
with respect to sale and leaseback transactions involving Principal Properties
(with the exception of such transactions which are excluded as described in
"Restrictions on Sales and Leasebacks" below)
would not exceed 10% of consolidated Net Tangible Assets.
The above restriction does not apply to, and there will be excluded from
Secured Debt in any computation under such restriction, Debt secured by:
1. any Mortgage existing on any asset of, or on shares of stock or
Debt of, any Person at the time such Person becomes a Restricted Subsidiary
and not created in contemplation of such event;
2. any Mortgage on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Mortgage attaches to such asset concurrently with or
within 90 days after the acquisition thereof, or in the case of an asset
under construction, within 90 days after receipt of an occupancy
certificate therefor;
3. any Mortgage on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Company or a Restricted
Subsidiary and not created in contemplation of such event;
4. any Mortgage existing on any asset prior to the acquisition thereof
by the Company or a Restricted Subsidiary and not created in contemplation
of such acquisition;
5. Mortgages in favor of the Company or a Restricted Subsidiary;
6. Mortgages securing industrial revenue or pollution control bonds;
or
7. any Mortgage arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses, provided that such Debt is not increased and is not secured by any
additional assets. (Section 1004)
Restrictions on Sales and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into any sale
and leaseback transaction involving any Principal Property, unless at the time
of such transaction and after giving effect thereto:
(x) the aggregate amount of all Attributable Debt of the Company and
its Restricted Subsidiaries with respect to such transaction, plus
(y) all secured Debt (with the exception of secured Debt which is
excluded as described in "Restrictions on Secured Debt" above)
will not exceed 10% of Consolidated Net Tangible Assets.
This restriction does not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, any sale and
leaseback transaction if:
1. The lease is for a period, including renewal rights, not in excess
of three years;
2. The sale or transfer of the Principal Property is made within 90
days after its acquisition, or in the case of a Principal Property under
construction, within 90 days after receipt of an occupancy certificate
therefor;
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3. The lease secures or relates to industrial revenue or pollution
control bonds;
4. The transaction is between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries; or
5. The Company or such Restricted Subsidiary, within 180 days after
the sale is completed, applies to the retirement of Funded Debt of the
Company or a Restricted Subsidiary, or to the purchase of other property
which will constitute Principal Property of a value at least equal to the
value of the Principal Property leased, an amount not less than the greater
of (i) the net proceeds of the sale of the Principal Property leased or
(ii) the fair market value of the Principal Property leased, as determined
by the Board of Directors.
The amount to be applied to the retirement of Funded Debt shall be reduced
by (x) the principal amount of any debentures or notes (including securities
issued under the Indenture) of the Company or a Restricted Subsidiary
surrendered within 180 days after such sale to the applicable trustee for
retirement and cancellation and (y) the principal amount of Funded Debt, other
than items referred to in the preceding clause (x), voluntarily retired by the
Company or a Restricted Subsidiary within 180 days after such sale. (Section
1005)
Merger or Consolidation
The Company shall not enter into any consolidation or merger with or into
any other corporation (other than a merger with a wholly or majority-owned
Subsidiary in which the Company is the surviving corporation) and no conveyance
or transfer of its property substantially as an entirety to another Person may
be made:
1. Unless:
(i) The surviving corporation or acquiring Person shall be a
corporation organized and existing under the laws of the United States of
America, any state thereof, or the District of Columbia and shall expressly
assume the payment of principal of and any premium and interest on the Debt
Securities and the Performance of the covenants in the Indenture;
(ii) 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
(iii) The Company has delivered the required Officers' Certificate and
Opinion of Counsel to the Trustee; or
2. If, as a result thereof, any Principal Property of the Company or any
Restricted Subsidiary would become subject to a Mortgage which is not expressly
excluded from the restrictions or permitted by the provisions of the
"Restrictions on Secured Debt" covenant unless all the outstanding Debt
Securities are secured by a lien upon such Principal Property equal with (or at
the Company's option, prior to) that of the Debt secured by such Mortgage.
(Section 801)
MODIFICATION AND WAIVER
The Company and the Trustee may amend the Indenture with the consent of the
Holders of not less than 66 2/3% in aggregate principal amount of the
outstanding securities of each series issued under the Indenture affected by the
amendment. However, the Company and the Trustee may not, without the consent of
the Holder of each Security affected thereby:
1. Change the Stated Maturity of the principal of or any installment
of the principal of or interest, if any, on any such Security;
2. Reduce the principal amount of, the rate of interest, if any, on or
any premium payable upon the redemption of, any such Security;
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3. Reduce the principal amount due upon acceleration of the maturity
of an Original Issue Discount Security;
4. Change the place or currency of payment of principal of (or premium
or interest, if any, on) any such Security;
5. Impair the right to institute suit to enforce any payment on or
after the Stated Maturity or Redemption Date of such Security;
6. Change the Indenture to permit amendments with the consent of the
Holders of less than 66 2/3% in principal amount of securities of any
affected series; or
7. Modify the above requirements or reduce the percentage of
outstanding securities necessary to waive compliance with certain
provisions of the Indenture or to waive certain defaults and their
consequences. (Section 902)
The Holders of a majority in aggregate principal amount of the outstanding
securities of any series may waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
(Section 1008)
SATISFACTION, DISCHARGE, AND DEFEASANCE
Covenant Defeasance
If the Company deposits with the Trustee, in trust, at or before maturity
or redemption of the outstanding securities of any series, money or direct
obligations of the United States of America or obligations the principal of and
interest on which are guaranteed by the United States of America in such amounts
and maturing at such times that the proceeds of such obligations to be received
upon the respective maturities and interest payment dates of such obligations
will provide funds sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay when due the principal of (and premium,
if any) and each installment of principal of (and premium, if any) and interest
on any series of outstanding securities at the Stated Maturity of such principal
or installment of principal or interest, as the case may be, then the Company
may omit to comply with certain terms of the Indenture with respect to that
series of securities, including the restrictive covenants described above.
Further, the Events of Default described in clauses (3) and (4) under "Events of
Default" below shall not apply. Defeasance of securities of any series is
subject to the satisfaction of certain conditions, including among others:
1. The absence of an Event of Default or event which with notice or
lapse of time would become an Event of Default at the date of the deposit;
and
2. That such deposit will not result in a breach of, or constitute a
default under, any instrument by which the Company is bound. (Sections 402
and 404)
Defeasance and Discharge of any Series
Upon the deposit of money or securities as contemplated in the preceding
paragraph and the satisfaction of certain other conditions, the Company may also
omit to comply with its obligation to pay the principal of (and premium, if any)
and interest on a particular series of securities. Any Events of Default with
respect thereto shall not apply, and thereafter, the Holders of securities of
such series shall be entitled only to payment out of the money or securities
deposited with the Trustee. Such conditions include among others:
1. No Event of Default or event which, with notice or lapse of time,
would become an Event of Default exists at the date of deposit;
2. the Company delivers to the Trustee an Opinion of Counsel of a
nationally recognized tax counsel that Holders of the securities of such
series will not recognize income, gain, or loss for federal income tax
purposes as a result of such deposit and defeasance and will be subject
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to federal income tax in the same amounts, in the same manner, and at the
same times as would have been the case if such deposit and defeasance had
not occurred; and
3. The Company receives an Officer's Certificate stating that
discharge and defeasance will cause such securities or securities of that
series to be delisted from any securities exchange on which they are
listed. (Sections 403 and 404)
Satisfaction and Discharge of Indenture and Securities
The Indenture shall, upon Company Request, cease to be in effect (except
for certain surviving rights expressly provided for in the Indenture) when (A)
all Securities have either been delivered to the Trustee for cancellation or are
due and payable or will become due and payable or will be called for redemption
within one year and the Company has deposited sufficient money in trust with the
Trustee to pay and discharge the entire indebtedness, (B) the Company has paid
all other sums payable by the Company under the Indenture, and (C) the Company
has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent have been complied with.
Federal Income Tax Consequences
Under current federal income tax law, the deposit and defeasance described
above under "Covenant Defeasance" will not result in a taxable event to any
Holder of securities or otherwise affect the federal income tax consequences of
an investment in securities of any series.
The federal income tax treatment of the deposit and defeasance described
above under "Defeasance and Discharge of any Series" is not clear. A deposit and
defeasance is likely to be treated as a taxable exchange of such securities for
beneficial interests in the trust consisting of the deposited money or
securities. In that event, a Holder of securities would be required to recognize
gain or loss equal to the difference between the Holder's adjusted basis for the
securities and the fair market value of the Holder's beneficial interest in such
trust. Thereafter, such Holder would be required to include in income a share of
the income, gain, and loss of the trust. As described above, except in certain
limited circumstances involving a deposit made within one year of maturity or
redemption (see Section 401 of the Indenture), it is a condition to such a
deposit and defeasance that the Company obtain an opinion of tax counsel to the
effect that such deposit and defeasance will not alter the Holders' tax
consequences that would have been applicable in the absence of the deposit and
defeasance. Purchasers of the Debt Securities should consult their own advisers
with respect to the tax consequences to them of such deposit and defeasance,
including the applicability and effect of tax laws other than federal income tax
law.
EVENTS OF DEFAULT
The Indenture defines an "Event of Default" with respect to securities of
each series as one or more of the following events:
1. Default in the payment of any interest on any security of that
series for 30 days after becoming due;
2. Default in the payment of principal of or any premium on any
security of that series when due;
3. Default in the deposit of any sinking fund payment when due under
the terms of the securities of that series;
4. Default in the performance, or breach, of any other covenant or
warranty of the Company in the Indenture for 90 days after notice;
10
<PAGE> 14
5. Involuntary acceleration of the maturity of indebtedness in excess
of $5,000,000 for money borrowed by the Company or any of its Subsidiaries,
if the acceleration is not rescinded or annulled, or the indebtedness is
not discharged, within 10 days after notice;
6. Certain events of bankruptcy, insolvency, or reorganization; and
7. Any other Event of Default provided with respect to securities of
that series issued under the Indenture. (Section 501)
If any Event of Default described in clauses (1), (2), or (7) above shall
occur and be continuing, then either the Trustee or the Holders of at least 25%
(or if the securities of the series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
in principal amount of the outstanding securities of that series may accelerate
the Maturity of the securities of that series. If an Event of Default described
in clauses (3), (4), (5), or (6) above shall occur and be continuing, then
either the Trustee or the Holders of at least 25% (or if the securities are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) in principal amount of the outstanding
securities issued under the Indenture may accelerate the Maturity of all
outstanding securities. (Section 502)
The Indenture provides that if a default occurs, the Trustee shall give the
Holders of securities of that series notice of the default as required or
provided by the Trust Indenture Act. (Section 602)
The Indenture requires the Company to furnish to the Trustee an annual
statement by certain Company officers that to the best of their knowledge the
Company is not in default of any of its obligations under the Indenture or, if
there has been a default, specifying each such default. (Section 1006)
The Holders of a majority in principal amount of the outstanding securities
of any series affected will have the right, subject to certain limitations, to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the securities of such series and to waive certain
defaults. (Section 512)
Subject to certain provisions, the Trustee will not be obligated to
exercise any of its rights or powers under the Indenture at the request of any
of the Holders of securities unless they shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses, and liabilities
which the Trustee might incur in compliance with such request. (Section 603)
CONCERNING THE TRUSTEE
The Company and its consolidated subsidiaries maintain customary banking
relationships with U.S. Bank Trust National Association (the Trustee under the
Indenture) and/or its affiliates.
GOVERNING LAW
The Indenture and the securities shall be governed by and construed under
New York law.
PLAN OF DISTRIBUTION
We may sell Debt Securities to one or more underwriters for public offering
and sale or may sell Debt Securities to investors directly or through agents.
The Prospectus Supplement will describe the method of distribution.
11
<PAGE> 15
The Offered Securities may be distributed periodically in one or more
transactions at:
- A fixed price or prices, which may be changed;
- Market prices prevailing at the time of sale;
- Prices related to the prevailing market prices; or
- Negotiated prices.
In connection with the sale of Offered Securities, underwriters or agents may
receive compensation from us in the form of underwriting discounts or
commissions. They may also receive commissions from purchasers of Offered
Securities for whom they may act as agent. Underwriters or agents may sell
Offered Securities to or through dealers. Those dealers may receive compensation
in the form of discounts, concessions, or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agent.
Any underwriting compensation which we pay to underwriters or agents in
connection with the Offered Securities and any discounts, concessions, or
commissions allowed by underwriters to participating dealers will be described
in the Prospectus Supplement. Underwriters, dealers, and agents participating in
the distribution of the Offered Securities may be deemed to be underwriters, and
any discounts and commissions received by them and any profit realized by them
on resale of the Offered Securities may be deemed to be underwriting discounts
and commissions, under the Securities Act of 1933. Underwriters or agents and
their controlling persons, dealers, and agents may be entitled, under agreements
entered into with us, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act of 1933.
If indicated in the Prospectus Supplement, we will authorize dealers or
other persons acting as our agents to solicit offers by certain institutions to
purchase Offered Securities from us pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date(s) stated in the
Prospectus Supplement. Each Contract will be for an amount not less than (and
the aggregate amount of Offered Securities sold pursuant to Contracts shall be
not less or more than) the respective amounts stated in the Prospectus
Supplement. Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions. Purchasers will in all cases be subject to the Company's approval.
The obligations of any purchaser under any Contract will not be subject to any
conditions except:
1. The purchase by an institution of the Offered Securities covered by
its Contract shall not at the time of delivery be prohibited under the laws
of any jurisdiction in the United States to which such institution is
subject, and
2. If the Offered Securities are being sold to underwriters, the
Company shall have sold to the underwriters the total principal amount of
the Offered Securities less the principal amount covered by Contracts.
The underwriters will not have any responsibility regarding the validity or
performance of the Contracts.
Each issue of Offered Securities will be a new issue of securities with no
established trading market. Any underwriters to whom we sell Offered Securities
for public offering and sale may make a market in the Offered Securities.
Nevertheless, the underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Offered Securities.
Certain of the underwriters and their associates may engage in transactions
with and perform services for us in the ordinary course of business.
12
<PAGE> 16
VALIDITY OF OFFERED SECURITIES
The validity of the Offered Securities will be passed upon for us by John
W. Holleran, our General Counsel, and for the underwriters or agents, if any, by
Sullivan & Cromwell, New York, New York. As of December 31, 1997, Mr. Holleran
was the beneficial owner of 592 shares of our common stock.
EXPERTS
The financial statements incorporated by reference in this Prospectus have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report which accompanies those statements, and are
incorporated by reference in reliance upon the authority of that firm as experts
in accounting and auditing in giving such reports.
13
<PAGE> 17
PART II.
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
We estimate the expenses of the offering described in this Registration
Statement to be as follows:
Commission filing fee (actual fee) $88,500
Accounting fees and expenses 11,000
Legal fees and expenses 5,000
Rating agencies' fees 90,000
Trustee's fees and expenses 6,500
Printing 50,000
Miscellaneous 3,000
--------
Total $254,000
========
Item 15. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware authorizes the
Company to indemnify its directors and officers under specified circumstances.
Our Restated Certificate of Incorporation and bylaws provide that we shall
indemnify, to the extent permitted by Delaware law, our directors, officers, and
employees against liabilities (including expenses, judgments, and settlements)
incurred by them in connection with any actual or threatened action, suit, or
proceeding to which they are or may become parties and which arise out of their
status as directors, officers, or employees.
Our directors and officers are insured, under insurance policies
maintained by BCC (subject to the limitations of the policies), against certain
expenses incurred in the defense of actions, suits, or proceedings and certain
liabilities which might be imposed as a result of such actions, suits, or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
Item 16. List of Exhibits
Required exhibits are listed in the Index to Exhibits and are
incorporated by reference.
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<PAGE> 18
Item 17. Undertakings
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(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
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the registration statement or any material change
to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the 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.
4. That, for the purposes of determining any liability under the
Securities Act
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<PAGE> 19
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 in the Prospectus or any
Prospectus Supplement or under Item 15 above or otherwise, the registrant has
been advised that in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act of 1933 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 the
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.
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<PAGE> 20
POWER OF ATTORNEY
Each person whose signature appears below appoints Christopher C.
Milliken and John W. Holleran, and each of them severally, acting alone and
without the other, their true and lawful attorney-in-fact with authority to
execute in the name of each such person and to file with the Securities and
Exchange Commission, together with any exhibits and other documents, any and all
amendments (including post-effective amendments) to this Registration Statement
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended, and any rules, regulations, and requirements of the
Securities and Exchange Commission in respect thereof, which amendments may make
such other changes in the Registration Statement as the aforesaid
attorney-in-fact executing the same deems appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Itasca, state of Illinois, on April 15, 1998.
Boise Cascade Office Products
Corporation
By /s/ Christopher C. Milliken
-----------------------------
Christopher C. Milliken
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 15, 1998.
Signatures Title
---------- -----
Principal Executive Officers:
/s/ Christopher C. Milliken President
- -----------------------------
Christopher C. Milliken
/s/ Peter G. Danis Jr. Chief Executive Officer
- -----------------------------
Peter G. Danis Jr.
Principal Financial Officer:
Senior Vice President,
/s/ A. James Balkins III Treasurer, and Chief
- ----------------------------- Financial Officer
A. James Balkins III
Principal Accounting Officer:
Vice President and
/s/ Darrell R. Elfeldt Controller
- -------------------------------
Darrell R. Elfeldt
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<PAGE> 21
Signatures Title
---------- -----
A Majority of the Directors:
/s/ George J. Harad Director
- ---------------------------
George J. Harad
/s/ John B. Carley Director
- ---------------------------
John B. Carley
/s/ James G. Connelly III Director
- ---------------------------
James G. Connelly III
/s/ Theodore Crumley Director
- ---------------------------
Theodore Crumley
/s/ Peter G. Danis Jr. Director
- ---------------------------
Peter G. Danis Jr.
/s/ A. William Reynolds Director
- ---------------------------
A. William Reynolds
/s/ Christopher C. Milliken Director
- ---------------------------
Christopher C. Milliken
Dated: April 15, 1998
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<PAGE> 22
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 29, 1998, incorporated by reference in Boise Cascade Office Products
Corporation's Form 10-K for the year ended December 31, 1997, and to all
references to our firm included in this Registration Statement.
Arthur Andersen LLP
Boise, Idaho
April 15, 1998
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<PAGE> 23
BOISE CASCADE OFFICE PRODUCTS CORPORATION
EXHIBIT INDEX
Filed with Form S-3
Exhibit Page
1. Form of underwriting agreement (including form
of terms agreement and form of delayed delivery
contract)
4. Indenture dated as of March 31, 1998, between
the Company and U.S. Bank Trust National
Association
5. Opinion of John W. Holleran
12. (1) Statements re computation of ratios
23.1 Consent of Arthur Andersen LLP (see page II-__)
23.2 Consent of John W. Holleran (included in Exhibit 5)
24. Power of Attorney (see page II-__)
25. Form T-1 Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of [First Trust of New York,
National Association]
(1) Exhibit 12 was filed under the same exhibit number in our 1997 Annual
Report on Form 10-K and is incorporated by reference.
- --------------------------------------------------------------------------------
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<PAGE> 1
EXHIBIT 1
BOISE CASCADE OFFICE PRODUCTS CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Boise Cascade Office Products Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities registered under the registration statement
referred to in Section 3 ("Registered Securities"). The Registered Securities
will be issued under an indenture, dated as of March 31, 1998, ("Indenture"),
between the Company and U.S. Bank Trust National Association as trustee, in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms, with all such terms for
any particular series of the Registered Securities being determined at the time
of sale. Particular series of the Registered Securities will be sold pursuant to
a Terms Agreement referred to in Section 3, for resale in accordance with terms
of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2 (b),
8 and 14 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement (No. 333- ) relating to the
Registered Securities, including a prospectus which, as supplemented
from time to time, shall be used in connection with all sales of the
Securities, has been filed with the Securities and Exchange Commission
("Commission") and has become effective. The registration statement or
statements relating to the Securities in any offering hereunder
(including the documents incorporated by reference therein), as amended
at the time of any Terms Agreement referred to in Section 3, are
hereinafter collectively
<PAGE> 2
referred to as the "Registration Statement", and the prospectus
(including the documents incorporated by reference therein) included in
such Registration Statement, as supplemented as contemplated by Section
3 to reflect, among other things, the terms of the Securities and the
terms of the offering thereof, is hereinafter referred to as the
"Prospectus". Any reference to the Registration Statement or Prospectus
as amended or supplemented shall be deemed to include any documents
filed after the effective date of the registration statement relating
to the Registered Securities under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and so incorporated by reference in
such registration statement or the prospectus included therein.
(b) When each part of each registration statement relating to the
Registered Securities became effective, such part and the prospectus
included therein contained all statements which were required to be
stated therein in accordance with the Securities Act of 1933 ("Act"),
the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules
and regulations of the Commission thereunder ("Rules and Regulations")
and in all respects conformed to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and on the date of each Terms Agreement
referred to in Section 3, the Registration Statement and the
Prospectus, and at any and all times subsequent thereto up to and
including the Closing Date for the Securities to which such Terms
Agreement relates, the Registration Statement and the Prospectus as
then amended or supplemented, will contain all statements which are
required to be stated therein in accordance with the Act, the Trust
Indenture Act and the Rules and Regulations and in all respects will
conform to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
except that the foregoing does not apply to statements in or omissions
from any such documents that are based upon written information
furnished to the
-2-
<PAGE> 3
Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(c) Each document or portion thereof incorporated by reference in
the prospectus included in the registration statement relating to the
Registered Securities at the effective date of each registration
statement conformed, when filed with the Commission, in all respects to
the requirements of the Exchange Act, and the rules and regulations of
the Commission thereunder ("Exchange Act Rules and Regulations"), and
each document, if any, filed after such effective date under the
Exchange Act and deemed to be incorporated by reference in the
Prospectus in accordance with Item 12 of Form S-3 conformed or will
conform, as the case may be, when so filed with the requirements of the
Exchange Act and the Exchange Act Rules and Regulations.
3. Purchase, Sale and Delivery of Purchased Securities. The obligation
of the Underwriters to purchase the Securities will be evidenced by an exchange
of telegraphic or other written communications ("Terms Agreement") at the time
the Company determines to sell the Securities. The Terms Agreement shall
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the principal amount of Securities to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Securities not already specified in the Indenture,
including, but not limited to, interest rate (if any), maturity, any redemption
provisions and any sinking fund requirements and whether any of the Securities
may be sold to institutional purchasers pursuant to Delayed Delivery Contracts
(as defined below) and, if so, the minimum principal amount of such Securities
that may be sold pursuant to any such Contract and the maximum aggregate
principal amount of Registered Securities that may be sold pursuant to all of
such Contracts. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of the offering that
should be reflected in the prospectus
-3-
<PAGE> 4
supplement relating to the offering of Securities. The Securities to be
purchased by each Underwriter pursuant to the Terms Agreement relating thereto
shall be in definitive fully registered form to the extent practicable, and in
such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in New York
Clearing House (next day) funds. The Company shall make certificates for the
Securities available to the Underwriters for checking and packaging at least one
full business day prior to the Closing Date at the place specified in such Terms
Agreement. The obligations of the Underwriters under this Agreement and each
Terms Agreement shall be several and not joint.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities from investors of the types set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Exhibit A attached hereto ("Delayed Delivery Contracts") but with such changes
therein as the Company may approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, on the Closing Date, the Company
will pay to the Representatives, for the accounts of the Underwriters, the fee
set forth in such Terms Agreement in respect of the principal amount of
Securities sold pursuant to Delayed Delivery Contracts ("Contract Securities").
The Company will enter into a Delayed Delivery Contract in all cases where a
sale of Contract Securities arranged by the Underwriters has been approved by
the Company, but, except as the Company may otherwise agree, such Delayed
Delivery Contract must be for at least the minimum principal amount of Contract
Securities set forth in such Terms Agreement or attachment thereto, and the
aggregate principal amount of Contract Securities may not exceed the maximum
amount set forth in such Terms Agreement or attachment thereto. The Company will
advise the Representatives no later than 10:00 A.M., New York City time, on the
third business day preceding any Closing Date (or at such later time as the
Representatives may otherwise agree) of any sales of Contract Securities that
have been so approved. The Underwriters will not have any responsibility
-4-
<PAGE> 5
in respect of the validity or performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement or attachment thereto, except to the
extent that the Representatives determine that such reduction shall be otherwise
than pro rata and so advise the Company; provided, however, that the principal
amount of Securities to be purchased by all Underwriters shall be the total
principal amount of Securities less the aggregate amount of Contract Securities.
It is understood that any Representative, acting individually
and not in a representative capacity, may (but shall not be obligated to) make
payment to the Company on behalf of any other Underwriter for Securities to be
purchased by such Underwriter. Any such payment by such Representative shall not
relieve any such Underwriter of any of its obligations hereunder.
4. Offering by Underwriters. It is understood that after the
execution of a Terms Agreement relating to any securities, the Underwriters
propose to offer such Securities for sale upon the terms and conditions set
forth in the Prospectus.
5. Covenants of the Company. In connection with any offering of
Securities, the Company covenants and agrees with the several Underwriters that:
(a) The Company will make no further amendment or any
supplement to the Registration Statement or Prospectus, after the
date of the Terms Agreement relating to such Securities and prior
to the Closing Date for such Securities, which shall be reasonably
disapproved by the Representatives for such Securities promptly
after reasonable notice; will advise the Representatives promptly
of any such amendment or supplement after such Closing Date and
furnish the Representatives with copies thereof; will file promptly
-5-
<PAGE> 6
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the
offering or sale of such Securities; will advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has become
effective or any supplement to the Prospectus or any amended
Prospectus has been filed, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of the
Prospectus, any supplement to the Prospectus or any amended
Prospectus and of the initiation of any proceeding for any such
purpose; and in the event of the issuance of any stop order or of
any order preventing or suspending the use of the Prospectus or any
such supplement to the Prospectus or amended Prospectus, will use
promptly its best efforts to obtain its withdrawal.
(b) If at any time when a prospectus relating to such
securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act or the Trust Indenture Act,
the Company promptly will (i) prepare and file with the Commission
an amendment or supplement which will correct such Statement or
omission or an amendment which will effect such compliance, or (ii)
prepare and file with the Commission documents deemed to be
incorporated by reference in the Prospectus as then amended or
supplemented which will correct such statement or omission or
effect such compliance.
(c) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the later
of (i) the effective date of the registration statement relating to
the Registered Securities, (ii) the
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<PAGE> 7
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of
such Terms Agreement and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the
provisions of Section 11(a) of the Act. It is understood that
compliance by the Company with Rule 158 under the Act will satisfy
the Company's obligations pursuant to this Section 5(c).
(d) The Company will furnish to the Representatives copies
of the Registration Statement, any related preliminary prospectus
(which, including documents incorporated by reference therein, is
hereinafter referred to as a "Preliminary Prospectus"), any related
preliminary prospectus supplement, the Prospectus, and all
amendments and supplements to such documents, and all documents
incorporated by reference in any of the foregoing documents, in
each case as soon as available and in such quantities as the
Representatives may reasonably request. A copy of each document
prepared or filed by the Company on or prior to the date of each
Terms Agreement shall be furnished to the Representatives on behalf
of the Underwriters prior to their execution of such Terms
Agreement; provided, however, that if such documents are not
available, the Company shall furnish to such Representatives the
information included or to be included therein, except that in such
case the Company need not furnish such Representatives with
information to be included in the prospectus supplement relating to
the Securities as to the terms of the Securities and their manner
of distribution.
(e) The Company will cooperate with the Underwriters in
qualifying such Securities for offering and sale and in determining
their eligibility for investment under the laws of such
jurisdictions as the Representatives designate and will continue
such qualifications in effect so long as required for the
distribution of such Securities; provided, however, that the
Company shall not be obligated to file any general consent to
service, or to qualify as a foreign corporation in any state in
which it is not now so qualified.
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<PAGE> 8
(f) During a period of five years from the date of any
Terms Agreement relating to such Securities, the Company will
promptly furnish to the Representatives, and upon request, to each
of the other Underwriters, if any, a copy of its annual report for
each fiscal year and current reports of the Company for each
quarterly period, in each case in the forms and at the times
furnished to shareholders of the Company, and, as soon as
available, a copy of each report of the Company filed with the
Commission; and, during a period of three years from the date of
the Terms Agreement relating to such Securities, the Company will
furnish to the Representatives such other information concerning
the Company as the Representatives may reasonably request.
(g) The Company will use its best efforts to obtain the
listing of such Securities, subject to notice of issuance, on such
national securities exchanges, if any, as are indicated in the
Terms Agreement relating to such Securities, and the registration
thereof under the Exchange Act, in each case prior to the Closing
Date for such securities.
(h) The Company will not, without the prior consent of the
Representatives, offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company having a maturity of more
than one year, during the period beginning from and including the
date of execution of the Terms Agreement with respect to such
Securities and continuing to and including the earlier of (i) the
date 30 days after the date of execution of such Terms Agreement
and (ii) the date on which any trading restrictions on the sale of
such Securities are terminated.
6. Expenses. The Company agrees with each Underwriter of any
Securities that the Company will pay or cause to be paid the following:
(a) The fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Registered Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the
Registration
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<PAGE> 9
Statement, any Preliminary Prospectus, any preliminary prospectus
supplement, the Prospectus and any amendments and supplements
thereto and the mailing and delivery of copies thereof to the
Underwriters and dealers;
(b) The cost of printing this Agreement and any Terms
Agreement, any agreement among Underwriters, any Delayed Delivery
Contract, any Indenture and any other documents in connection with
the offering, purchase, sale and delivery of the Securities;
(c) All expenses in connection with the qualification of
the Registered Securities for offering and sale as provided in
Section 5(e) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification;
(d) Any fees charged by securities rating services for
rating the Securities;
(e) The cost of preparing the Securities;
(f) The fees and expenses of the Trustee and any agent of
the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities;
(g) Any filing fees payable to the National Association of
Securities Dealers, Inc. with respect to the Registered Securities;
(h) Out-of-pocket expenses incurred in distributing any
Preliminary Prospectuses or preliminary prospectus supplements to
the Underwriters; and
(i) All other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 6.
It is understood, however, that, except as provided in this
Section 6, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
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<PAGE> 10
7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for any Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of the Company
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) Prior to such Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
(b) The Representatives shall not have advised the Company
or been advised by the Company or the Commission that the
Registration Statement or Prospectus or any amendment or supplement
thereto contains an untrue statement of fact or omits to state a
fact which the Representatives have concluded, after conferring
with Sullivan & Cromwell, counsel for the Underwriters, is in
either case material and in the case of an omission is required to
be stated therein or is necessary to make the statements therein
not misleading.
(c) The Representatives shall have received an opinion or
opinions of the General Counsel or an Associate General Counsel for
the Company, dated such Closing Date, to the effect set forth in
Exhibit B hereto.
(d) The Representatives shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Securities, the Registration
Statement, the Prospectus and such other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
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<PAGE> 11
(e) The Representatives shall have received a certificate
of either the Chairman of the Board of Directors, the President or
a Vice President of the Company, and of either the principal
financial or accounting officer of the Company, dated such Closing
Date, to the effect that the representations and warranties on the
part of the Company herein are true and correct as of such Closing
Date with the same force and effect as if made on that date, and
that the Company has performed all its obligations hereunder to be
performed at or prior to that date, and as to such other matters as
the Representatives may reasonably request.
(f) The Representatives shall have received a signed letter
or letters from Arthur Andersen & Co., dated such Closing Date,
addressed to the Company and to the Underwriters, with conformed
copies for each of the Underwriters, in form and substance
satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives
such further information and documents as the Representatives shall
have reasonably requested.
(h) Between the time of execution of such Terms Agreement
and such Closing Date there shall not have occurred any of the
following: (i) a general suspension or material limitation in
trading of securities on the New York Stock Exchange; (ii) a
declaration of a bank moratorium by authorities of the United
States or of the State of New York; (iii) the general establishment
of minimum prices by the New York Stock Exchange or by the
Commission; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the good faith judgment of the
Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus.
(i) Between the time of execution of such Terms Agreement
and such Closing Date there shall not have been any change in the
capital stock or short-term or
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<PAGE> 12
long-term indebtedness for borrowed money of the Company and its
subsidiaries on a consolidated basis, or any change (financial or
otherwise) in, or any development involving a prospective change
(financial or otherwise) in or affecting, the financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries on a consolidated basis or the general affairs of
the Company and its subsidiaries considered as a whole, except as
set forth or contemplated in the Prospectus as of the date of such
Terms Agreement, which in the judgment of the Representatives is
material and adverse.
(j) Between the time of execution of such Terms Agreement
and such Closing Date (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request.
In the event that the purchase of such Securities does not occur by
reason of subsection (h), (i) or (j) of this Section 7, the Company shall have
no liability to the Underwriters except for expenses to be paid or reimbursed as
set forth in Section 6 and its obligations under Section 8.
8. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration
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<PAGE> 13
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter and each such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein; and provided, further,
that the indemnity agreement contained in this paragraph in respect of any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or of
any person controlling such Underwriter) on account of any such losses, claims,
damages, or liabilities (or actions in respect thereof), arising from the sale
of Securities to any person if such Underwriter shall have failed to send or
give to such person (i) with or prior to the written confirmation of such sale,
a copy of the Prospectus or the Prospectus as amended or supplemented, if any
amendments or supplements thereto shall have been furnished at or prior to the
time of written confirmation of the sale involved, or (ii) with or prior to the
delivery of such Securities to such person, a copy of any amendment or
supplement to the Prospectus which shall have been furnished subsequent to such
written confirmation and prior to the delivery of such Securities to such
person, to the extent that any such loss, claim, damage, or liability results
from an untrue statement or an omission which was corrected in the Prospectus or
the Prospectus as amended or supplemented. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have
signed the Registration Statement and each person, if any, who
controls the Company
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<PAGE> 14
within the meaning of the Act, against any losses, claims, damages
or liabilities to which the Company or any such director, officer
or controlling person may become subject, under the Act or
otherwise insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, or any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus supplement, or arise out of
or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made therein
in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein; and will
reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise
have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section, notify the
indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified
party (who will not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from
the
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<PAGE> 15
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall be liable for any
compromise or settlement of any such action effected without its
consent.
(d) If the indemnification provided for in subsection (a)
or (b) above is for any reason, other than as specified in such
subsections, held by a court to be unavailable and the Company or
any Underwriter has been required to pay damages as a result of a
determination by a court that the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus
supplement, contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, then the
Company shall contribute to the damages paid by the Underwriters,
and the Underwriters shall contribute to the damages paid by the
Company, but in each case only to the extent that such damages
arise out of or are based upon such untrue statement or omission,
in such Proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities, and
the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such damages as well as any other
relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and
commissions received by the Underwriters in each case as set forth
in the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement of a
material fact or the omission to state a material fact relates to
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<PAGE> 16
information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not
be just and equitable if their respective obligations to contribute
pursuant to this subsection (d) were to be determined by pro rata
allocation of the aggregate damages (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to in the first sentence of this subsection
(d). For purposes of this subsection (d), the term "damages" shall
include any legal or other expenses reasonably incurred by the
Company or any of the Underwriters in connection with investigating
or defending against any action or claim which is the subject of
the contribution provisions of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue statement or omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
9. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities which they may have agreed
to purchase under the Terms Agreement relating to such Securities and the
aggregate principal amount of such Securities that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities to be purchased under such Terms Agreement,
the other Underwriters shall be obligated severally, in proportion to their
respective commitments under this Agreement and such Terms Agreement, to
purchase the Securities that such defaulting Underwriters agreed but
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<PAGE> 17
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Securities with respect to which such default
or defaults occur is more than 10% of the total principal amount of the
Securities to be purchased under such Terms Agreement, and arrangements
satisfactory to the Representatives and the Company for the purchase of
such Securities by other persons are not made within 36 hours after such
default, such Terms Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
paid or reimbursed by the Company pursuant to Section 6 and the respective
obligations of the Company and the Underwriters pursuant to Section 8. As used
in this Agreement, the term "Underwriter" includes any person substituted for
an Underwriter under this Section 9. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Reimbursement of Underwriters' Expenses. If the sale of the Securities
pursuant to this Agreement and the Terms Agreement relating to such Securities
is not consummated because any condition to the Underwriters' obligations
hereunder and thereunder is not timely satisfied, or because of any failure or
inability on the part of the Company to perform any agreement on its part
contained herein or therein, then, unless otherwise provided in the last
paragraph of Section 7, the Company will reimburse the Underwriters or cause
them to be reimbursed upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of their counsel) that shall have been
incurred by them in connection with the offering of such Securities, and the
Company shall have no further liability hereunder except as provided in Sections
6 and 8.
11. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement or any Terms Agreement relating to the Securities
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
the Company or any of its officers, directors or controlling persons and will
survive delivery of and payment for the Securities.
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<PAGE> 18
12. Notices. All communications hereunder will be in writing, and, if sent
to the Underwriters, will be mailed, faxed or electronically conveyed to the
Representatives at the delivery address(es) set forth in the Terms Agreement or
otherwise provided by the Representatives, or, if sent to the Company, will be:
MAILED TO:
Boise Cascade Office Products Corporation
800 West Bryn Mawr Avenue
Itasca, IL 60143
Attn: Chief Financial Officer
WITH A COPY TO:
Boise Cascade Office Products Corporation
P.O. Box 50
Boise, ID 83728-0001
Attn: General Counsel
or will be faxed or electronically conveyed to the address(es) provided by the
Company.
13. Successors. This Agreement and each Terms Agreement will inure to the
benefit of and be binding upon the Company, such Underwriters as are identified
in such Terms Agreement and their respective successors and, to the extent
provided in Section 8, the officers, directors and controlling persons referred
to in Section 8, and no other person will have any right or obligation
hereunder.
14. Representation of Underwriters. In all dealings with the Company under
this Agreement and any applicable Terms Agreement, the Representatives represent
that they shall act on behalf of each of the Underwriters and that any action
under this Agreement and such Terms Agreement taken by the Representatives will
be binding upon all the Underwriters.
15. Governing Law. This Agreement and each Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
16. Counterparts. Each Terms Agreement may be
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<PAGE> 19
executed in counterparts, all of which, taken together, shall constitute a
single agreement.
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<PAGE> 20
EXHIBIT A
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 a.m., New York Time,
on _______________, __________.*)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering.]
BOISE CASCADE OFFICE PRODUCTS CORPORATION
c/o [Insert name(s) of Representative(s)
of the Underwriters]
Gentlemen:
The undersigned hereby agrees to purchase from Boise Cascade
Office Products Corporation, a Delaware corporation (the "Company"), and the
Company agrees to sell to the undersigned, [if one delayed closing, insert: as
of the date hereof, for delivery on ______, (the "Delivery Date")]
$ ___________ principal amount of the Company's [Insert title
of securities] ("Securities"), offered by the Company's Prospectus dated
___________, and a Prospectus Supplement dated _____________, relating thereto,
receipt of copies of which is hereby acknowledged, at ___% of the principal
amount thereof plus accrued interest, if any, and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof for delivery on the dates set forth below, Debt Securities in the
principal amounts set forth below:
DELIVERY DATE PRINCIPAL AMOUNT
Each of such delivery dates is hereinafter referred to as
<PAGE> 21
a Delivery Date.]
Payment for the Securities which the undersigned has agreed to
purchase for delivery on-the-each-Delivery Date shall be made to the Company or
its order by immediately available funds at the office of ______________at
___________. m., New York Time, on-the-such-Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned -- for
delivery on such Delivery Date -- in definitive form and in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to-the-such-Delivery Date.
It is expressly agreed that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, the Securities on-the-each-Delivery Date shall be subject only to
the conditions that (1) the purchase of the Securities shall
not-at-the-such-Delivery Date be prohibited under the laws of any jurisdiction
in the United States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the total principal amount of the Securities
less the principal amount thereof covered by this and other similar Contracts.**
The undersigned represents that its investment in such Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject.
________________________
* Insert date which is third full business day prior to Closing Date
under Terms Agreement.
** Modify appropriately if the Underwriters may be obligated to take less
than all of the Securities under the Terms Agreement.
____________________
Promptly after completion of the sale of Securities to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below
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<PAGE> 22
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of, and be binding
upon, the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto
in any number of counterparts each of which shall be deemed to be an original,
but all such counterparts shall constitute one and the same instrument.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and without limiting the foregoing, need not be
on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Very truly yours,
(Name of Purchaser)
By:
-------------------------------
Title:
(Address of Purchaser)
BOISE CASCADE OFFICE PRODUCTS CORPORATION
Accepted as of the above date.
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<PAGE> 23
By:
---------------------
Title:
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<PAGE> 24
EXHIBIT B
OPINION OF GENERAL COUNSEL
OR ASSOCIATE GENERAL COUNSEL
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Delaware, with
corporate power and authority under such laws to own its properties and conduct
its business as described in the Prospectus;
(ii) The Securities have been duly authorized, executed, authenticated,
issued and delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
[--if delayed delivery--(ii) The Securities have been duly authorized
and (a) the Securities (other than Contract Securities) have been duly
authorized, executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the benefits provided
by the Indenture, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles and (b) the Contract Securities when executed,
authenticated, issued and delivered against payment in accordance with the
Delayed Delivery Contracts will constitute, valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.)]
(iii) The Indenture has been duly authorized, executed and delivered by the
Company, and has been duly qualified under the Trust Indenture Act, and the
Indenture constitutes a valid and legally binding instrument, enforceable in
<PAGE> 25
accordance with its terms subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws relating to or affecting
creditors' rights and by general equity principles;
(iv) This Agreement [,] [and] the Terms Agreement [and any Delayed Delivery
Contracts] relating to such Purchased Securities have been duly authorized,
executed and delivered to the Company;
(v) The Registration Statement has become effective under the Act, and, to
the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated by the
Commission;
(vi) When each part of the Registration Statement relating to the Securities
became effective, such part and the Prospectus included therein complied as to
form in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and while such counsel has not
independently verified the accuracy, completeness or fairness of such statements
and takes no responsibility therefor, such counsel has no reason to believe that
such documents contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; and on the date of the Terms Agreement and on
the Closing Date for the Securities to which such Terms Agreement relates, the
Registration Statement and the Prospectus as then amended or supplemented
complied or complies, as the case may be, as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and while such counsel has not independently verified the accuracy,
completeness or fairness of such statements and takes no responsibility
therefor, such counsel has no reason to believe that such documents contained or
contain, as the case may be, any untrue statement of a material fact or omitted
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; it being understood that such
counsel need express no opinion or belief as to the financial statements or
financial data contained in the Registration Statement or the Prospectus or any
such amendment or supplement;
-2-
<PAGE> 26
(vii) Each document incorporated by reference in the Registration Statement
or Prospectus or any amendment or supplement thereto, at the time such document
was filed or became effective under the Act, as the case may be, complied as to
form in all material respects with the requirements of the Exchange Act and the
Rules and Regulations;
(viii) The Company has the power and authority (corporate and other) to own
its properties and conduct its business in all material respects as described in
the Prospectus; and
(ix) The descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings and contracts and other documents
are accurate and fairly present the information required to be shown and such
counsel does not know of any legal or governmental proceedings required to be
described in the Prospectus which are not described as required in all material
respects, nor of any contract or documents of a character required to be
described in the Registration Statement or Prospectus which are not described as
required in all material respects.
-3-
<PAGE> 27
BOISE CASCADE OFFICE PRODUCTS CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
[Date]
[Names of Representative(s) or Underwriters (if no Representatives)]
[As Representative(s) of
the several Underwriters,]
[Address of Representative(s)]
Dear Sirs:
Boise Cascade Office Products Corporation (the "Company")
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, as filed as an Exhibit to the Company's registration
statement on Form S-3 (No. 333- ) (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto the securities
specified in Schedule II hereto (the "Securities"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Terms Agreement to the same extent as
if such provision had been set forth in full herein. (Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you.) You will act for the
several Underwriters in connection with this financing, and any action taken
under the Underwriting Agreement or this Terms Agreement by you will be binding
upon all the Underwriters. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price to the Underwriters set forth in
Schedule II hereto, the principal
<PAGE> 28
amount of Securities set forth opposite the name of such Underwriter in
Schedule I hereto, less the principal amount of Securities covered by Delayed
Delivery Contracts, if any, as may be specified in such Schedule II.
We confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the Prospectus (as
defined in the Underwriting Agreement) there has been no material adverse change
in the financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
If the foregoing is in accordance with your understanding,
kindly sign and return to us two counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company.
Very truly yours,
BOISE CASCADE OFFICE PRODUCTS
CORPORATION
By
-----------------------------------
Title:
Accepted as of the date hereof:
[Names of Representative(s)]
on behalf of each of the Underwriters
By
--------------------------
Title:
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<PAGE> 29
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount
of Purchased
Securities
Underwriter to be Purchased
----------- ---------------
<S> <C>
[Name(s) of Representatives]............................................$
[Name(s) of other underwriters].........................................$
Total...................................................................$
</TABLE>
<PAGE> 30
SCHEDULE II
Title of Securities:
Principal Amount:
Expected Reoffering Price: % of principal amount, subject to change by the
Representatives
Purchase Price: % of principal amount, plus accrued interest [ ,
if any,] from , 19 .
Maturity:
Interest: [% per annum, from ,19 ,payable semiannually on and
commencing ,19 , to the holders of record on the preceding or ,
as the case may be. [Zero coupon.]
Redemption Provisions:
Sinking Fund Provisions:
Stock Exchange Listing:
Place for Checking and Packaging Purchased Securities:
Closing Date and Time:
Closing Location:
[Delayed Delivery Contracts: [None.] [Delivery Date(s) shall be , 19 .
Underwriters' fee is % of the principal amount of the Contract Securities.]
Minimum amount of each Contract:
Maximum amount of all Contracts:]
Address for Notices per Section 12:
Other Terms:
<PAGE> 1
EXHIBIT 4
================================================================================
BOISE CASCADE
OFFICE PRODUCTS CORPORATION
TO
U.S. BANK TRUST
NATIONAL ASSOCIATION, TRUSTEE
------------------
INDENTURE
DATED AS OF MARCH 31, 1998
------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
PAGE
----
Parties.......................................................................1
Recitals of the Company.......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
101. Definitions......................................................1
Act..............................................................2
Affiliate........................................................2
Attributable Debt................................................2
Authenticating Agent.............................................3
Board of Directors...............................................3
Board Resolution.................................................3
Business Day.....................................................3
Commission.......................................................3
Company..........................................................3
Company Request; Company Order...................................3
Consolidated Net Tangible Assets.................................3
Corporate Trust Office...........................................3
corporation......................................................4
Defaulted Interest...............................................4
Depository.......................................................4
Event of Default.................................................4
Exchange Act.....................................................4
Expiration Date..................................................4
Funded Debt......................................................4
Global Security..................................................4
Holder...........................................................4
Indenture........................................................4
interest.........................................................5
Interest Payment Date............................................5
Investment Company Act...........................................5
Maturity.........................................................5
Notice of Default................................................5
Officers' Certificate............................................5
Opinion of Counsel...............................................5
Original Issue Discount Security.................................5
Outstanding......................................................5
Paying Agent.....................................................7
Person...........................................................7
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<PAGE> 3
Place of Payment...................................................7
Predecessor Security...............................................7
Principal Property.................................................7
Redemption Date....................................................7
Redemption Price...................................................8
Regular Record Date................................................8
Responsible Officer................................................8
Restricted Subsidiary..............................................8
Secured Debt.......................................................8
Securities.........................................................8
Securities Act.....................................................8
Security Register and Security Registrar...........................8
Special Record Date................................................8
Stated Maturity....................................................8
Subsidiary.........................................................9
Trust Indenture Act................................................9
Trustee............................................................9
U.S. Government Obligations........................................9
Vice President.....................................................9
102. Compliance Certificates and Opinions...............................9
103. Form of Documents Delivered to Trustee............................10
104. Acts of Holders, Record Date......................................11
105. Notices, etc., to Trustee and Company.............................13
106. Notice to Holders; Waiver.........................................13
107. Conflict With Trust Indenture Act.................................14
108. Effect of Headings and Table of Contents..........................14
109. Successors and Assigns............................................14
110. Separability Clause...............................................14
111. Benefits of Indenture.............................................14
112. Governing Law.....................................................14
113. Legal Holidays....................................................14
ARTICLE TWO
SECURITY FORMS
201. Forms Generally...................................................15
202. Form of Face of Security..........................................15
203. Form of Reverse of Security.......................................17
204. Form of Trustee's Certificate of Authentication...................21
205. Form of Legend for Global Securities..............................21
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<PAGE> 4
ARTICLE THREE
THE SECURITIES
301. Amount Unlimited; Issuable in Series..............................21
302. Denominations.....................................................24
303. Execution, Authentication, Delivery and Dating....................24
304. Temporary Securities..............................................26
305. Registration of Transfer and Exchange.............................26
306. Mutilated, Destroyed, Lost and Stolen Securities..................28
307. Payment of Interest; Interest Rights Preserved....................29
308. Persons Deemed Owners.............................................30
309. Cancellation......................................................30
310. Computation of Interest...........................................31
ARTICLE FOUR
SATISFACTION AND DISCHARGE
401. Satisfaction and Discharge of Indenture and Securities............31
402. Covenant Defeasance...............................................32
403. Defeasance and Discharge..........................................32
404. Conditions to Defeasance..........................................33
405. Application of Trust Money; Indemnification.......................34
ARTICLE FIVE
REMEDIES
501. Events of Default.................................................35
502. Acceleration of Maturity; Rescission and Annulment................37
503. Collection of Indebtedness and Suits for Enforcement by Trustee...38
504. Trustee May File Proofs of Claim..................................38
505. Trustee May Enforce Claims Without Possession of Securities.......39
506. Application of Money Collected....................................39
507. Limitation on Suits...............................................40
508. Unconditional Right of Holders to Receive Principal, Premium, and
Interest........................................................40
509. Restoration of Rights and Remedies................................41
510. Rights and Remedies Cumulative....................................41
511. Delay or Omission Not Waiver......................................41
512. Control by Holders................................................41
513. Waiver of Past Defaults...........................................41
514. Undertaking for Costs.............................................42
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<PAGE> 5
515. Waiver of Stay or Extension Laws..............................42
ARTICLE SIX
THE TRUSTEE
601. Certain Duties and Responsibilities...........................42
602. Notice of Defaults............................................43
603. Certain Rights of Trustee.....................................43
604. Not Responsible for Recitals or Issuance of Securities........44
605. May Hold Securities...........................................44
606. Money Held in Trust...........................................44
607. Compensation and Reimbursement................................44
608. Conflicting Interests.........................................45
609. Corporate Trustee Required, Eligibility.......................45
610. Resignation and Removal; Appointment of Successor.............45
611. Acceptance of Appointment by Successor........................47
612. Merger, Conversion, Consolidation, or Succession to
Business...................................................48
613. Preferential Collection of Claims Against Company.............48
614. Appointment of Authenticating Agent...........................48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
701. Company to Furnish Trustee Names and Addresses of Holders.....50
702. Preservation of Information; Communications to Holders........50
703. Reports by Trustee............................................51
704. Reports by Company............................................51
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
801. Company May Consolidate, etc., Only on Certain Terms..........51
802. Successor Corporation Substituted.............................52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
-iv-
<PAGE> 6
901. Supplemental Indentures Without Consent of Holders.............54
902. Supplemental Indentures with Consent of Holders................54
903. Execution of Supplemental Indentures...........................55
904. Effect of Supplemental Indentures..............................55
905. Conformity with Trust Indenture Act............................55
906. Reference in Securities to Supplemental Indentures.............55
ARTICLE TEN
COVENANTS
1001. Payment of Principal, Premium, and Interest....................55
1002. Maintenance of Office or Agency................................56
1005. Money for Securities Payments to be Held in Trust..............56
1004. Restrictions on Secured Debt...................................57
1005. Restriction on Sales and Leasebacks............................59
1006. Statement as to Compliance.....................................60
1007. Corporate Existence............................................60
1008. Waiver of Certain Covenants....................................60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
1101. Applicability of Article.......................................61
1102. Election to Redeem; Notice to Trustee..........................61
1103. Selection of Securities to be Redeemed.........................61
1104. Notice of Redemption...........................................62
1105. Deposit of Redemption Price....................................63
1106. Securities Payable on Redemption Date..........................63
1107. Securities Redeemed in Part....................................63
ARTICLE TWELVE
SINKING FUNDS
1201. Applicability of Article.......................................64
1202. Satisfaction of Sinking Fund Payments with Securities..........64
1203. Redemption of Securities for Sinking Fund......................64
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<PAGE> 7
INDENTURE
INDENTURE, dated as of March 31, 1998, between BOISE CASCADE OFFICE
PRODUCTS CORPORATION, a corporation duly organized and existing under the laws
of the state of Delaware (the "Company"), having its principal office at 800 W.
Bryn Mawr, Itasca, IL 60143, and U.S. BANK TRUST NATIONAL ASSOCIATION, a
national banking association duly organized and existing under the laws of the
United States, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
101. Definitions. For all purposes of the Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
<PAGE> 8
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein," "hereof," and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section, or other subdivision.
Certain terms used principally in Article Six are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining primary term thereof, discounted
from the respective due dates thereof to such date at the rate per annum equal
to the weighted average interest rate borne by the Securities. The weighted
average interest rate borne by the Securities shall be calculated by dividing
the aggregate of the annual interest payments required on the Securities, based
on the amount Outstanding at the latest date any Securities were issued
hereunder, by the aggregate principal amount of the Securities Outstanding at
such date. In the case of an Original Issue Discount Security, the amount
Outstanding shall be deemed to be the entire principal thereof and the annual
interest payments shall be deemed to be the product obtained by multiplying such
entire principal amount by the rate of interest payable on overdue principal.
The net amount of rent required to be paid under any such lease for any such
period shall be the aggregate amount of rent payable by the lessee with respect
to such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates, and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person appointed by the Trustee to act
on behalf of the Trustee to authenticate Securities of one or more series.
-2-
<PAGE> 9
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday, and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"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 instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Company
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all liabilities other than (a) deferred income taxes, (b) Funded
Debt, and (c) shareholders' equity, and (ii) all goodwill, trade names,
trademarks, patents, organization expenses, and other like intangibles, all as
set forth on the most recent quarterly balance sheet of the Company and computed
in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee in
New York, NY, at which at any particular time its corporate trust business shall
be administered. As of the date of this Indenture, the office of the Trustee at
which its corporate trust business is conducted is located at 100 Wall Street,
Suite 1600, New York, New York 10005.
-3-
<PAGE> 10
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depository
for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 205 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
-4-
<PAGE> 11
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any successor statute, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1006 shall be the principal executive, financial or
accounting officer of the company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which by its
terms provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities previously authenticated and delivered
under this Indenture, except:
(i) Securities canceled by the Trustee or delivered to the Trustee
for cancellation prior to the date of determination;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected pursuant
to Section (402); and
-5-
<PAGE> 12
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given,
made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date,
(A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of
the principal which would be due and payable as of the date of such
determination upon acceleration of its Maturity to such date pursuant
to Section 502,
(B) if, as of such date, the principal amount payable at the
Stated Maturity of a Security is not determinable, the principal amount
of such Security which shall be deemed to be Outstanding shall be the
amount as specified or determined as contemplated by Section 301(14),
(C) the principal amount of a Security denominated in one or
more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined by the
Company as of such date in the manner provided as contemplated by
Section 301(11) of the principal amount of such Security (or in the
case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and
(D) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver
or other action, only Securities which the Trustee actually knows to be
so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so
to pledge such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
-6-
<PAGE> 13
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government, or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost, or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost, or stolen Security.
"Principal Property" means any distribution center, warehouse or other
facility owned at the date hereof or hereafter acquired by the Company or any
Restricted Subsidiary of the Company which is located within the present 50
states of the United States, the gross book value (including related land and
improvements thereon and all machinery and equipment included therein without
deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 1 1/2% of Consolidated Net Tangible Assets,
other than (i) any property which in the opinion of the Board of Directors of
the Company is not of material importance to the total business conducted by the
Company as an entirety or (ii) any portion of a particular property which is
similarly found not to be of material importance to the use or operation of such
property.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for its redemption 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.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated in Section 301(5).
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by
-7-
<PAGE> 14
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the present 50 States of the United
States of America, (ii) which owns a Principal Property, and (iii) which is not
primarily engaged in the development and sale or financing of real property.
"Secured Debt" means Debt secured by a Mortgage on any Principal
Property of the Company or any Restricted Subsidiary or on any shares of stock
or Debt of a Restricted Subsidiary, as set forth in Section 1004 hereof.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any successor
statute, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however that in
the event the Trust Indenture Act is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as amended.
"Trustee" means the Person named as the Trustee in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable
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provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means securities which 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 are not
callable or redeemable at the option of the issuer thereof. U.S. Government
Obligations shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided, however, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate
or opinion shall be given in the form of an Officers' Certificate, if to be
given by an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1006) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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<PAGE> 16
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
103. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons may certify or
give an opinion as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representation by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated into
one instrument.
104. Acts of Holders; Record Date.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) may be sometimes referred to herein as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for
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<PAGE> 17
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner, which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register or
by a certificate of the Security Registrar.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by the Indenture to be
given, made or taken by Holders of Securities for such series; provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii)
any request to institute proceedings referred to in Section 507(2), or (iv) any
direction referred to in Section 512. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company, upon written notice to
the Trustee and the Holders, from setting a new record date for any action for
which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect), and nothing in this paragraph shall
be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the
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<PAGE> 18
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2), or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee, upon written notice to the Company and the
Holders, from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in the manner set forth in Section 105, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
Company may designate any day as the "Expiration Date" and from time to time may
change the Expiration Date to any earlier or later day; provided that no change
shall be effective unless notice of the proposed new Expiration Date is given to
the Trustee in writing, and to each Holder of Securities of the relevant series
in the manner set forth in Section 106, on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the Company shall be deemed to have initially
designated the 90th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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<PAGE> 19
105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed first-class to the Company
at the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in
writing to the Trustee by the Company, or delivered by electronic means
to the delivery address specified by the Company.
106. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed first class or
delivered by electronic means to each Holder affected by such event, at his or
her address as it appears in the Security Register or, if by electronic means,
to the delivery address specified by the Holder, not later than the latest date,
if any, and not earlier than the earliest date, if any, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail or
by electronic means, neither the failure to mail or electronically deliver such
notice, nor any defect in any notice so mailed or delivered, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice given in the manner prescribed by this Indenture shall be
deemed to have been given whether or not received by any particular Holder.
Where this Indenture provides for notice in any manner, the Person entitled to
receive such notice, either before or after the event may waive such notice in
writing, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail
or by electronic means, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
107. Conflict With Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act which is
required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act
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<PAGE> 20
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
108. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
110. Separability Clause. In case any provision in this lndenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
111. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
112. Governing Law. This Indenture and the Securities shall be governed
by and construed in accordance with the laws of the State of New York.
113. Legal Holidays. If any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
201. Forms Generally. The Securities of each series shall be in
substantially the form set forth in this Article, or in such other form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depository therefor or as may,
consistently herewith, be determined by the officers
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<PAGE> 21
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
202. Form of Face of Security. [If the Security is an Original Issue
Discount Security, insert any legend required at the time of issuance by the
Internal Revenue Code of 1954, as amended, or the corresponding regulations
thereunder.]
BOISE CASCADE OFFICE PRODUCTS CORPORATION
. . . . . . . . % . . . . . . . . . . . . . . . . . DUE . . . . . . . .
(Hereinafter "Securities")
No . . . . . . . . . . . . . . . . $ . . . . . . . . .
BOISE CASCADE OFFICE PRODUCTS CORPORATION, a Delaware corporation
(herein called the "Company," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ____________________________ , or registered assigns, the
principal sum of __________________________________Dollars on ________________.
[If the Security is to bear interest prior to Maturity, insert -, and to pay
interest thereon from ___________________________________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semiannually on__________________ and __________________ in each year,
commencing___________________________________, at the rate of ____% per annum,
until the principal hereof is paid or made available for payment [If applicable
insert -, and at the rate of ___% per annum on any overdue principal and
premium and (to the extent that the payment of such interest shall be legally
enforceable) on any overdue interest, from the dates such amounts are due until
they are paid or made available for payment]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the
_____________________________________or __________________________________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be
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<PAGE> 22
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice of which shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert -
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal
that is not so paid on demand shall bear interest at the rate of ___% per annum
(to the extent that the payment of such interest shall be legally enforceable),
from the date of such demand until the amount so demanded is paid or made
available for payment. Interest on overdue interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert-any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in _______________, or at the option
of the Holder of this Security, at the office or agency of the Company in
______________, so long as the Company shall maintain an office in ________ for
such purpose, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Trustee or Authenticating Agent hereon has executed the
certificate of authentication by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
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<PAGE> 23
BOISE CASCADE
OFFICE PRODUCTS CORPORATION
By _____________________________
Attest:
________________________________
203. Form of Reverse of Security. This Security is one of a duly
authorized issue of Securities of the Company issued and to be issued in one or
more series under an Indenture, dated as of March 31, 1998 (herein called the
"Indenture"), between the Company and U.S. Bank Trust National Association, as
Trustee (herein called the "Trustee" which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, [limited in aggregate principal amount to
$_______, except as otherwise provided in the Indenture].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' prior notice by mail, [if applicable,
insert - (1) on ________ in any year commencing with the year ____and ending
with the year ________ through operation of the sinking fund for this series at
a Redemption Price equal to 100% of the principal amount, and (2)] at any time
[on or after 19___ ], as a whole or from time to time in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [on or before _____________, _____% and if
redeemed] during the 12-month period beginning _____________ of the years
indicated,
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to 100% of the principal amount,
together with accrued interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
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[If applicable, insert -The Securities of this series are subject to
redemption upon not less than 30 days' prior notice by mail, (1) on __________
in any year commencing with the year _____ and ending with the year __________
_______through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after _____________ ], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ____________of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION OF THAN THROUGH OPERATION
YEAR THE SINKING FUND OF THE SINKING FUND
- ---- -------------------- ----------------------
and thereafter at a Redemption Price equal to 100% of the principal amount, with
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to ________,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption on ______
______ in each year beginning with the year ____________ and ending with the
year _______ of [not less than] $ __________ [("mandatory sinking fund") and not
more than $______________] aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company other than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made in the inverse
order in which they become due.]
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<PAGE> 25
[In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and
Events of Default with respect to this Security] [, in each case] upon
compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security, is an Original Issue Discount Security, - If an Event
of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of
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<PAGE> 26
not less than 25% in principal amount of the Securities of this series at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee and the Security Registrar, duly executed by the Holder
hereof or his or her attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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204. Form of Trustee's Certificate of Authentication. This is one of
the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
U.S. BANK TRUST
NATIONAL ASSOCIATION, as Trustee
By ___________________________________
Authorized Officer
205. Form of Legend for Global Securities. Unless otherwise specified
as contemplated by Section 301 for the Securities evidenced thereby, every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ARTICLE THREE
THE SECURITIES
301. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities of
any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906 or
1107, and except for any Securities which,
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pursuant to Section 303, are deemed never to have been authenticated
and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of
the series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, 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
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be
evidenced;
(8) the obligation, if any, of the Company to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous
provision or at the option of the Holder thereof and the price or
prices at which, the period or periods within which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(10) if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(11) if other than the currency of the United States of America
the currency, currencies or currency units in which the principal of or
any premium or interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of
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America for any purpose, including for purposes of the definition of
"Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than those in which such Securities are stated to be
payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to
be the principal amount of such Securities as of any such date for any
purposes thereunder or hereunder, including the principal amount
thereof which shall be due and payable upon any Maturity other than the
Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in
which such amount deemed to be the principal amount shall be
determined);
(15) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 402 and, if
other than by a Board Resolution, the manner in which any election by
the Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which any such
Global Security shall bear in addition to or in lieu of that set forth
in Section 205 and any circumstances in addition to or in lieu of those
set forth in Clause (2) of the last paragraph of Section 305 in which
any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons
other than the Depository for such Global Security or a nominee
thereof;
(17) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the
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requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in an Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the initial authentication of Securities
of that series.
302. Denominations. The Securities of each series shall be issuable in
registered form in such denominations as shall be specified as contemplated by
Section 301(9). In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
303. Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities.
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, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee
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shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture,
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or Authenticating Agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture, such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
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304. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
305. Registration of Transfer and Exchange. The Company shall cause to
be kept a register (referred to herein as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities.
The Company initially shall act as "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided. If at
any time the Company shall determine not to act as Security Registrar or shall
fail to maintain a Security Register, the Company agrees to notify the Trustee
in writing of such fact and hereby appoints the Trustee as its agent to maintain
a Security Register and to act as Security Registrar. At all reasonable times,
the Security Register shall be open for inspection by the Trustee.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee or Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such
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office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee or Authenticating Agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Security Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global
Security or a nominee thereof and delivered to such Depository or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depository
for such Global Security or a nominee thereof unless (A) such
Depository (i) has notified the Company that it is unwilling or
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unable to continue as Depository for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, (B)
there shall have occurred and be continuing an Event of Default with
respect to such Global Security, or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as
have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall
be registered in such names as the Depository for such Global Security
shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Sections 304, 306,
906 or 1107 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depository for such
Global Security or a nominee thereof.
306. Mutilated, Destroyed, Lost and Stolen Securities. In exchange for
any mutilated Security surrendered to the Trustee or the Company, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding shall be executed, authenticated and
delivered.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company may execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or will become due and payable within 30 days, the Company in its
discretion may, instead of issuing a new Security, pay such Security, such
payment to be made on the due date of such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be
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at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
307. Payment of Interest; Interest Rights Preserved. Except as
otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date ("Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the Payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed to each Holder of Securities
of such series in accordance with the provisions of Section 106, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or
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their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
308. Persons Deemed Owners. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Security, and the Depository shall be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever.
309. Cancellation. All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Security Registrar,
be delivered to the Security Registrar and shall be promptly canceled by it. The
Company may at any time deliver to the Security Registrar, or if the Company is
acting in such capacity to the Trustee or the Authenticating Agent, for
cancellation any Securities previously authenticated which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of as directed by a Company Order.
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310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
401. Satisfaction and Discharge of Indenture and Securities. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities and
of compensation and indemnity to the Trustee herein expressly provided for), and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation (i) have become due and payable,
or (ii) will become due and payable at their Stated Maturity
within one year, or (iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company, in
the case of (i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for
that purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent
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herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 404 and the last
paragraph of Section 1003 shall survive.
402. Covenant Defeasance. The Company may, except as otherwise
specified pursuant to Section 301, omit to comply with Section 301, Section 304,
Section 801 (except paragraph (1)), and Sections 1004 through 1006, inclusive,
of this Indenture and paragraphs (4) and (5) of Section 501 of this Indenture
shall not apply, as all of such provisions relate to Securities of any series,
so long as the Securities of such series remain Outstanding and, thereafter, all
provisions of this Indenture in respect of such Securities shall no longer be in
effect except the Company's and the Trustee's rights and obligations under
Sections 403, 603, 607, and 1003, and the Trustee, at the expense of the Company
shall, upon Company Request, execute proper instruments acknowledging the same
if the Company has satisfied the conditions set forth in Section 404.
403. Defeasance and Discharge. Upon the Company's exercise of its
option (if any) to apply this Section to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 404 are
satisfied (herein called "Defeasance"). For this purpose, Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Securities to receive, solely from
the trust fund described and as set forth in Section 404, payments in
repsect of the principal of and any premium and interest on such
Securities when payments are due,
(2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002, and 1003,
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and
(4) this Article.
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Subject to compliance with this Article, the Company may exercise its
option (if any) to apply this Section to any Securities notwithstanding the
prior exercise of its option (if any) to apply Section 402 to such Securities.
404. Conditions to Defeasance. Following are the conditions to the
application of Section 402 or 403 to any Securities or any series of Securities,
as the case may be:
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms will provide on or before the due date
of any payment money in an amount, or (C) a combination thereof,
sufficient, after payment, based on then applicable law, of all
Federal, state, and local taxes in respect thereof payable, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge (i) the principal of (and premium, if
any) on such Securities on the Stated Maturities, in accordance with
the terms of such Securities and this Indenture.
(2) If the Company elects to have Section 402 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and covenant
defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit and covenant
defeasance were not to occur.
(3) If the Company elects to have Section 403 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from or there has been published by the
Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income
tax law, in either case to the effect that, an based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
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(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing on the
date of such deposit.
(6) Such Defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or covenant defeasance 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.
(8) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this
Section have been complied with.
405. Application of Trust Money; Indemnification. (a) Subject to the
provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 401 or 402 and all
money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee, shall be held in trust and applied by it, in
accordance with the provisions of the Securities of the respective series for
which such deposit was made and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Person entitled thereto, of the
principal and any premium and interest for whose payment such money and U.S.
Government Obligations have been deposited with or received by the Trustee.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 401 or 402 or the interest and
principal received in respect of such obligations, other than any such tax, fee
or other charge payable by or on behalf of Holders. The Company shall be
entitled to prompt notice of an assessment or the commencement of any proceeding
for which indemnification may be sought under this Section 403 and, at its
election, to contest such assessment or to participate in, assume the defense
of, or settle such proceeding.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Section 401 or 402 which, in the written opinion of a
nationally-recognized firm of independent public accountants delivered to the
Trustee, are then in excess of the
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amount which then would have been required to be deposited for the purpose for
which such obligations or money were deposited or received.
ARTICLE FIVE
REMEDIES
501. Events of Default. "Event of Default," wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree, or order of any court or any order, rule, or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in the Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note, or other evidence
of indebtedness for money borrowed by the Company (including a default
with respect to Securities of any series other than that series) or
under any mortgage, indenture (including this Indenture) or instrument
under which there may be issued, or by which there may be secured or
evidenced, any indebtedness for money borrowed in excess of $5,000,000
of the Company, whether such indebtedness now exists or shall hereafter
be created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which
it would otherwise become due and payable, and such acceleration shall
not be rescinded or annulled, or such indebtedness
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discharged, within a period of ten days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice
specifying such default and requiring the Company to cause such
acceleration to be rescinded or annulled or to cause such indebtedness
to be discharged and stating that such notice is a "Notice of Default"
hereunder; provided, however, that subject to the provisions of
Sections 601 and 602, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of
the Trustee shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture, or other instrument; and
provided, further, that if such event of default under such mortgage,
indenture, or instrument shall be remedied or cured by the Company or
waived pursuant to such mortgage, indenture, or instrument, then,
unless the maturity of the Securities shall have been accelerated as
provided herein, the Event of Default hereunder shall be deemed
likewise to have been thereupon remedied, cured, or waived without
further action upon the part of either the Trustee or the Holders; or
(6) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of or in respect of the Company
under applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the institution by the Company of voluntary proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making by it
of any assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become
due and its willingness to be adjudicated bankrupt, or the taking of
corporate action by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities
of that series.
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502. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default described in Section 501(1), (2), or (8) with respect to Securities of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of the
Outstanding Securities of that series (or, if the 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) due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declarations such principal amount (or specified amount) shall
become immediately due and payable.
If an Event of Default described in Section 501(3), (4), (5), (6), or
(7) occurs and is continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities may
declare the principal amount (or, if any of the Outstanding Securities are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of those Original Issue Discount Securities) of all of
the Outstanding Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided, in this Article the Holders of a majority in principal amount of all
Outstanding Securities or of the Outstanding Securities of that series, as the
case may be, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Securities of that series;
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due other than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate prescribed therefor in
such Securities; and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents, and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements, and
advances of the Trustee, its agents, and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
504. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to
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distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator, or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however
that the Trustee may, on behalf of the Holders vote for the election of a
trustee in bankruptcy or other similar official and be a member of a creditors'
or other similar committee.
505. Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements, and
advances of the Trustee, its agents, and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
506. Application of Money Collected. Any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
507. Limitation on Suits. No Holder of any Security of any series shall
have any right to institute a proceeding, judicial or otherwise, with respect to
this Indenture,
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or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) an Event of Default shall have occurred and be continuing and
such Holder has previously given written notice to the Trustee of such
continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses, and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request, and offer of indemnity has failed to institute such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series.
It is understood and intended that no one or more Holders of any series
of Securities shall have any right in any manner whatsoever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb, or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
508. Unconditional Right of Holders to Receive Principal, Premium, and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
509. Restoration of Rights and Remedies. If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee, and the Holders shall be restored severally and respectively to
their former positions hereunder
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and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
510. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost, or stolen
Securities in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
511. Delay or Omission Not Waiver. No delay or omission of the Trustee
or of any Holder to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
512. Control by Holders. The Holders of a majority in principal amount
of the Outstanding Securities of any series shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
513. Waiver of Past Defaults. The Holders of not less than a majority
in principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
514. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered, or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may in its discretion assess reasonable costs against any party
litigant in such suit, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
515. Waiver of Stay or Extension Laws. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay, or impede the execution of any power herein granted to the trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.
ARTICLE SIX
THE TRUSTEE
601. Certain Duties and Responsibilities. The duties and
responsibilities of the trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
602. Notice of Defaults. If a default occurs hereunder with respect to
the Securities of any series, the Trustee shall give the Holders of Securities
of such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that, in the case of any default specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term
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"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
603. Certain Rights of Trustee. Subject to the provisions of Section
601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering, or omitting any action hereunder, the Trustee
(unless other evidence is specifically prescribed herein) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered,
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses, and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness, or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records, and premises of the Company, personally, or by agent or
attorney; and
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(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
604. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
605. May Hold Securities. The Trustee or any Affiliate thereof, any
Authenticating Agent, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar, or such
other agent.
606. Money Held in Trust. Money held by the Trustee or any Paying Agent
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee or any Paying Agent shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
607. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursement,
and advances incurred or made by the Trustee in performance of its
duties under or with respect to this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement, or advance
as may be attributable to its misconduct, bad faith, or negligence; and
(3) to indemnify each of the Trustee, any predecessor trustee, or
their agents for, and to hold each of them harmless against, any loss,
liability, or expense incurred without negligence or bad faith on the
part of the person seeking such indemnity and arising out of or in
connection with the acceptance
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or administration of the trust or trusts or the performance of their
duties hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder.
608. Conflicting Interests. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such conflicting interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. To the extent permitted by such Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series.
609. Corporate Trustee Required, Eligibility. There shall at all times
be one and only one Trustee hereunder with respect to the Securities of each
series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such, and has a combined capital and surplus of at least
$100,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation, or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, any Holder who has
been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee, and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a 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 Act of the Holders
of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, 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 Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, subject to Section 514,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series to all Holders of Securities of such series in the manner
provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
611. Acceptance of Appointment by Successor. In case of the appointment
hereunder of a successor Trustee with respect to all Securities, every such
successor
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Trustee so appointed shall execute, acknowledge, and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed, or conveyance, shall
become vested with all the rights, powers, trusts, and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer, and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts, and duties of the retiring Trustee with respect to the Securities of
that or those series to which the Appointment of such successor Trustee relates,
(ii) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates (except for the retiring Trustee's rights of indemnity and
compensation, which shall survive); but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers, and trusts referred to in the
first or second preceding paragraph, as the case may be.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
612. Merger, Conversion, Consolidation, or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion,
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion, or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
613. Preferential Collection of Claims Against Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
614. Appointment of Authenticating Agent. The Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange,
registration of transfer, or partial redemption thereof or pursuant to Section
306. Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. The Trustee hereby initially appoints U.S. Bank,
National Association as an Authenticating Agent in Boise, Idaho. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state
thereof, or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal, state, or
District of Columbia authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this
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Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company (or its agents) agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.
While an appointment with respect to one or more series is in effect
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
U.S. Bank Trust ___________________________
National Association, as Trustee As Authenticating Agent
for the Trustee
OR
By _________________________ By ________________________
Authorized Officer Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
701. Company to Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than ______ and ________ in each year,
a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of the Securities as of the
preceding ___________ or _____________, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if so acting.
702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each
series of Securities contained in the most recent list furnished to the
Trustee as provided in Section 701 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders made pursuant to the Trust Indenture Act.
703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
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(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than July 15 in
each calendar year, commencing in 1999.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
704. Reports by Company. The Company shall file with the Trustee and
with the Commission, and transmit to Holders, such information, documents, and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
801. Company May Consolidate, etc., Only on Certain Terms. The Company
shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer,
or lease the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and
validly existing under the laws of the United States of America, any
state thereof, or the District of Columbia, and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any, on) and interest on
all the Securities and the performance of every covenant of this
Indenture on the part of the Company 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;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company
would become subject to a Mortgage or other encumbrance which would not
be permitted by this Indenture, the Company or such successor Person,
as the case
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may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer, or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
802. Successor Corporation Substituted. Upon any consolidation or
merger of the Company with or into any other Person, or any conveyance, transfer
or lease of the Company's properties and assets substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; and thereafter,
except in the case of a lease, the Predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
901. Supplemental Indentures Without Consent of Holders. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of
Default are applicable to less than all series of Securities, stating
that such Events of Default are applicable solely to such series); or
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(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of the
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (A) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision,
nor (ii) modify the rights of the Holder of any such Security with
respect to such provision, or (B) shall become effective only when
there is no such Security Outstanding; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect, as conclusively evidenced by an Opinion of Counsel to
such effect.
902. Supplemental Indentures with Consent of Holders. With the consent
of the Holders of not less than 66 2/3% in aggregate principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of the principal of or interest on any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change any Place of
Payment where, or the coin or currency in which,
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any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section or Sections 513
or 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
903. Execution of Supplemental Indentures. In executing, or accepting
the additional rules created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties, or
immunities under this Indenture or otherwise.
904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
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Indenture for all purposes; and every Holder of Securities of each series
affected thereby theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
905. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
906. Reference in Securities to Supplemental Indentures. Securities of
any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
1001. Payment of Principal, Premium, and Interest. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
1002. Maintenance of Office or Agency. The Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location and any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices, and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices, and demands.
The Company may also from time to time designate one or more other
offices or agencies in or outside any Place of Payment where the Securities of
one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such
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purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby initially designates its Shareholder
Services office in Boise, Idaho, as such an office.
1003. Money for Securities Payments to be Held in Trust. If the Company
shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities of that series, hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held in trust
as provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent, and
(2) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent for payment in respect of the Securities
of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for three
years after such principal
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(and premium, if any) or interest has become due and payable shall be paid to
the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease, provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
1004. Restrictions on Secured Debt. The Company will not itself, and
will not permit any Restricted Subsidiary to, incur, issue, assume, or guarantee
any loans, whether or not evidenced by negotiable instruments or securities, or
any notes, bonds, debentures, or other similar evidences of indebtedness for
money borrowed (loans and notes, bonds, debentures, or other similar evidences
of indebtedness for money borrowed being called "Debt"), secured after the date
hereof by pledge of, or mortgage or lien on, any Principal Property of the
Company or any Restricted Subsidiary or any shares of stock of or Debt of any
Restricted Subsidiary (mortgages, pledges, and liens being called "Mortgage" or
"Mortgages" and any such Debt so secured being called "Secured Debt"), without
effectively providing that the Securities (together with, if the Company shall
so determine, any other Debt of the Company or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to the Securities) shall
be secured equally and ratably with (or, at the option of the Company, prior to)
such Secured Debt, so long as such Secured Debt shall be so secured, unless
after giving effect thereto, the aggregate amount of all such Secured Debt plus
all Attributable Debt of the Company and its Restricted Subsidiaries with
respect to sale and leaseback transactions to which Section 1005 is applicable
would not exceed 10% of Consolidated Net Tangible Assets; provided, however,
that this Section 1004 shall not apply to, and there shall be excluded from
Secured Debt in any computation under this Section 1004, Debt secured by:
(1) Mortgages on property of, or an any shares of stock of or Debt
of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary and not created in contemplation of such event;
(2) Mortgages in favor of the Company or any Restricted
Subsidiary;
(3) Mortgages on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Company or a
Restricted Subsidiary and not created in contemplation of such event;
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(4) Mortgages existing on any asset prior to the acquisition
thereof by the Company or a Restricted Subsidiary and not created in
contemplation of such event;
(5) Mortgages on property, shares of stock, or Debt existing at
the time of acquisition thereof (including acquisition through merger
or consolidation) or to secure the payment of all or any part of the
purchase price thereof or construction thereon or to secure any Debt
incurred prior to, at the time of, or within 90 days after the later of
the acquisition of such property, shares of stock or debt or the
completion of construction as evidenced by receipt of an occupancy
certificate, for the purpose of financing all or any part of the
purchase price thereof or construction thereon;
(6) Mortgages securing obligations issued by a state, territory,
or possession of the United States, or any political subdivision of any
of the foregoing or the District of Columbia, to finance the
acquisition or construction of property, and on which the interest is
not, in the opinion of tax counsel of recognized standing or in
accordance with a ruling issued by the Internal Revenue Service,
includible in gross income of the holder by reason of Section 103(a)(1)
of the Internal Revenue Code (or any successor to such provision) as in
effect at the time of the issuance of such obligations;
(7) Any extension, renewal, or replacement (or successive
extensions, renewals, or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (1) to (6), inclusive;
provided, however, that such extension, renewal, or replacement
Mortgage shall be limited to all or part of the same property, shares
of stock or Debt that secured the Mortgage extended, renewed, or
replaced (plus improvements on such property).
1005. Restriction on Sales and Leasebacks. The Company will not itself,
and will not permit any Restricted Subsidiary to, enter into any transaction
after the date hereof with any bank, insurance company, or other investor, or to
which any such bank, company, lender, or investor is a party, providing for the
leasing by the Company or Restricted Subsidiary of any Principal Property which
has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such bank, company, lender, or investor, or to any person to whom
funds have been or are to be advanced by such bank, company, lender, or investor
on the security of such Principal Property (herein referred to as a "sale and
leaseback transaction") unless, at the time of such transaction and after giving
effect thereto, the aggregate amount of all Attributable Debt with respect to
such transactions plus all Secured Debt to which Section 1004 is applicable
would not exceed 10% of Consolidated Net Tangible Assets. This covenant shall
not apply to, and there shall be excluded from Attributable Debt in any
computation under this Section 1005, Attributable Debt with respect to any sale
and leaseback transaction if:
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(1) the lease in such sale and leaseback transaction is for a
period, including renewal rights, of not in excess of three years, or
(2) the Company or a Restricted Subsidiary, within 180 days after
the sale or transfer shall have been made by the Company or by a
Restricted Subsidiary, applies an amount not less than the greater of
the net proceeds of the sale of the Principal Property leased pursuant
to such arrangement or the fair market value of the Principal Property
so leased at the time of entering into such arrangement (as determined
in any manner approved by the Board of Directors of the Company) to:
(a) the retirement of Funded Debt of the Company ranking on a
parity with or senior to the Securities or the retirement of Funded
Debt of a Restricted Subsidiary; provided, however, that the amount to
be applied to the retirement of such Funded Debt of the Company or a
Restricted Subsidiary shall be reduced by (x) the principal amount of
any Securities (or other notes or debentures constituting such funded
Debt) delivered within such 180-day period to the Trustee or other
applicable trustee for retirement and cancellation and (y) the
principal amount of such Funded Debt, other than items referred to in
the preceding clause (x), voluntarily retired by the Company or a
Restricted Subsidiary within 180 days after such sale; and provided,
further, that, notwithstanding the foregoing, no retirement referred to
in this clause (a) may be effected by payment at maturity or pursuant
to any mandatory sinking fund payment or any mandatory prepayment
provision, or
(b) the purchase of other property which will
constitute Principal Property having a fair market value, in the
opinion of the Board of Directors of the Company, at least equal to the
fair market value of the Principal Property leased in such sale and
leaseback transaction, or
(3) such sale and leaseback transaction is entered into prior to,
at the time of, or within 90 days after the later of the acquisition of
the Principal Property or the completion of construction as evidenced
by receipt of an occupancy certificate thereon, or
(4) the lease in such sale and leaseback transaction secures or
relates to obligations issued by a state, territory, possession of the
United States, or any political subdivision of any of the foregoing, or
the District of Columbia, to finance the acquisition or construction of
property, and on which the interest is not, in the opinion of tax
counsel of recognized standing or in accordance with a ruling issued by
the Internal Revenue Service, includible in gross income of the Holder
by reason of Section 103(a)(1) of the Internal Revenue Code (or any
successor to such provision) as in effect at the time of the issuance
of such obligations, or
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(5) such sale and leaseback transaction is entered into between
the Company and a Restricted Subsidiary or between Restricted
Subsidiaries.
1006. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture, and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof.
1007. Corporate Existence. Subject to Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.
1008. Waiver of Certain Covenants. The Company may, with respect to the
Securities of any series, omit in any particular instance to comply with any
term, provision, or condition set forth in Sections 1002 to 1006, inclusive,
with respect to the Securities of any series, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision, or condition, but no such waiver shall extend to or affect such
term, provision, or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision, or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
1101. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated in Section 301
for Securities of any series) in accordance with this Article.
1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such Securities. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 35 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for its administrative convenience), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed, and if applicable, of the tenor of the 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
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such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
1103. Selection of Securities to be Redeemed. If less than all the
Securities of any series are to be redeemed (unless all the Securities of such
series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee or
the Security Registrar with the approval of the Trustee, from the Outstanding
Securities of such series not previously called for redemption at random, pro
rata, by such method as the Trustee or the Security Registrar shall deem
customary within the industry, and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee or the Security Registrar with the approval of the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The party selecting the Securities to be redeemed shall promptly notify
the parties to the Indenture 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.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
1104. Notice of Redemption. Notice of redemption shall be given by
first-class mail, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his or her
address appearing in the Security Register.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption price and accrued interest, if any, to the
Redemption Date,
(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, and, if less than all the Outstanding Securities of any
series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date, the Redemption Price and accrued
interest will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
and
(6) 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.
Any notice which is mailed in the manner herein provided shall be
presumed conclusively to have been duly given, whether or not the Holder
receives such notice; and failure duly to give such notice by mail, or any
defect in such notice, to the Holder of any Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
1105. Deposit of Redemption Price. 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, hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date.
1106. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified plus accrued interest, 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. Upon surrender of any
such Security for redemption in accordance with said
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notice, such Security shall be paid by the Company at the redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 301, 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 Regular
Record Date or Special Record Date according to their terms and the provisions
of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
1107. Securities Redeemed in Part. Any Security which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
1201. Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301 for Securities of
such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." 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 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
1202. Satisfaction of Sinking Fund Payments with Securities. The
Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such
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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.
1203. Redemption of Securities for Sinking Fund. Not less than 90 days
prior to each sinking fund payment date for any series of Securities, the
company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 60 days before each such sinking fund payment date the Trustee shall select
or cause to be selected the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and not less than 30 days
before each sinking fund payment date cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
* * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BOISE CASCADE
OFFICE PRODUCTS CORPORATION
By /s/ A. James Balkins III
-------------------------
Treasurer
[SEAL]
Attest:
/s/ Matthew R. Broad
- ----------------------
Assistant Secretary
U.S. BANK TRUST
NATIONAL ASSOCIATION
By /s/ Catherine F. Donohue
-------------------------
Vice President
[SEAL]
Attest:
/s/ G. Barris
- ----------------------
Assistant Secretary
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<PAGE> 72
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
On the 31st day of March 1998, before me personally came
A. James Balkins III, to me known, who, being by me duly
sworn, did depose and say that he is Treasurer of Boise Cascade
Office Products Corporation, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
Jan Michaelson
Notary Public
State of Idaho
My Commission Expires 7-9-98
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of March 1998, before me personally came
Catherine F. Donohue, Vice President, to me known, who, being by me duly
sworn, did depose and say that he is Vice President of U.S. Bank Trust
National Association, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
Janet P. O'Hara
Notary Public
State of New York
My Commission Expires 11/3/99
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Exhibit 5
April 15, 1998
Securities and Exchange Commission
Attention: Division of Corporation Finance
450 Fifth Street, N.W.
Washington, DC 20549
Ladies and Gentlemen:
I am the general counsel of Boise Cascade Office Products Corporation, a
Delaware corporation. In that capacity, I represent the company in connection
with the preparation and filing with the Securities and Exchange Commission of
a Registration Statement on Form S-3. The Registration Statement relates to
the registration of $300,000,000 initial aggregate offering price of the
company's debt securities. These securities will be issued under an Indenture
dated as of March 31, 1998, between the company and U.S. Bank Trust National
Association, as trustee. I reviewed originals (or copies) of certified or
otherwise satisfactorily identified documents, corporate and other records,
certificates, and papers and such questions of law as I deemed it necessary to
examine for the purpose of this opinion.
Based on the foregoing, it is my opinion that:
1. The company is a corporation duly organized and existing under the laws
of the state of Delaware.
2. The debt securities, when duly authorized, executed, authenticated, and
delivered against payment therefor, will be validly issued and will
constitute binding obligations of the company in accordance with their
terms.
I consent to the filing of this opinion as an exhibit to the Registration
Statement. I also consent to the references to me under the heading "Validity
of Offered Securities" in the Prospectus contained in the Registration
Statement. In giving this consent, however, I do not admit that I am within
the category of persons whose consent is required by Section 7 of the
Securities Act of 1933.
Very truly yours,
/s/John W. Holleran
John W. Holleran
JWH:cjw
<PAGE> 1
[TO COME]
<PAGE> 1
[TO COME]
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2)
------------
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
FOR INFORMATION, CONTACT:
Dennis Calabrese, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
BOISE CASCADE OFFICE PRODUCTS CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 82-0477390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 West Bryn Mawr Avenue 60143
Itasca, Illinois
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
<PAGE> 2
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Comptroller of the Currency Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association.
Exhibit 2. Certificate of Authority to Commence Business for U.S. Bank
Trust National Association, incorporated herein by reference
to Exhibit 2 of Form T-1, Registration No. 33-83774.
Exhibit 3. Authorization of the Trustee to exercise corporate trust
powers for U.S. Bank Trust National Association,
incorporated herein by reference to Exhibit 3 of Form T-1,
Registration No. 33-83774.
Exhibit 4. By-Laws of U.S. Bank Trust National Association.
Exhibit 5. Not applicable.
Exhibit 6. Consent of U.S. Bank Trust National Association,
required by Section 321(b) of the Act, incorporated herein
by reference to Exhibit 6 of Form T-1, Registration No.
33-83774.
Exhibit 7. Report of Condition of U.S. Bank Trust National
Association, as of the close of business on December 31,
1997, published pursuant to law or the requirements of its
supervising or examining authority.
<PAGE> 3
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, U.S. Bank Trust National Association, a national
banking association organized and existing under the laws of the United States,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 30th day of March, 1998.
U.S. BANK TRUST
NATIONAL ASSOCIATION
By: /s/ Catherine F. Donohue
--------------------------------
Catherine F. Donohue
Vice President
<PAGE> 4
EXHIBIT 1
U.S. BANK TRUST
NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
For the purpose of organizing an association to perform any
lawful activities of national banks, the undersigned do enter into the following
Articles of Association:
FIRST. The title of this Association shall be "U.S. Bank
Trust National Association."
SECOND. The main office of this Association shall be in the
City, County and State of New York. The business of this Association will be
limited to that of a national trust bank, and to support activities incidental
thereto. This Association will not amend these Articles of Association to expand
the scope of or alter its business beyond that stated in this Article Second
without the prior approval of the Comptroller of the Currency. Prior to the
transfer of any stock of the Association, the Association will seek the prior
approval of the appropriate federal depository institution regulatory agency.
THIRD. The board of directors of the Association shall consist
of not less than five nor more than 25 persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
this Association with an aggregate par, fair market, or equity value of not less
than $1,000.00, as of either (i) the date of purchase, (ii) the date the person
became a director, whichever is more recent. Any combination of common or
preferred stock of this Association or U.S. Bancorp may be used.
Any vacancy in the board of directors may be filled by action
of a majority of the remaining directors between meetings of shareholders. The
board of directors may not increase the number of directors between meetings of
shareholders to a number that (1) exceeds by more than two the number of
directors last elected by shareholders where the number was fifteen or less; and
(2) exceeds by more than four the number of directors last elected by
shareholders where the number was sixteen or more, but in no event shall the
number of directors exceed twenty-five.
Terms of directors, including directors selected to fill
vacancies, shall expire at the next regular meeting of shareholders at which
directors are elected, unless the directors resign or are removed from office.
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Despite the expiration of a director's term, the director
shall continue to serve until his or her successor is elected and qualifies or
until there is a decrease in the number of directors and his or her position is
eliminated.
Honorary or advisory members of the board of directors,
without voting power or power of final decision in matters concerning the
business of this Association, may be appointed by resolution of a majority of
the full board of directors, or by resolution of shareholders at any annual or
special meeting. Honorary or advisory directors shall not be counted for
purposes of determining the number of directors of this Association or the
presence of a quorum in connection with any board action, and shall not be
required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders
to elect directors and transact whatever other business may be brought before
the meeting. It shall be held at the main office or any other convenient place
the board of directors may designate, on the day of each year specified
therefore in the bylaws, or if that day falls on a legal holiday in the State in
which this Association is located, on the next following banking day. If no
election is held on the day fixed, or in event of a legal holiday, an election
may be held on any subsequent day within sixty days of the day fixed, to be
designated by the board of directors, or, if the directors fail to fix the day,
by shareholders representing two-thirds of the shares issued and outstanding. In
all cases at least ten-days advance notice of the meeting shall be given to the
shareholders by first class mail.
A director may resign at any time by delivering written or
oral notice to the board of directors, its chairperson, or to this Association,
which resignation shall be effective when the notice is delivered unless the
notice specifies a later effective date.
A director may be removed by shareholders at a meeting called
to remove him or her, when notice of the meeting stating that the purpose or one
of the purposes is to remove him or her is provided, if there is a failure to
fulfill one of the affirmative requirements for qualification, or for cause;
provided, however, that a director may not be removed if the number of votes
sufficient to elect him or her under cumulative voting is voted against his or
her removal.
FIFTH. The authorized amount of capital stock of this
Association shall be 10,000 shares of common stock of the par value of
one-hundred dollars ($100.00) each; but said capital stock may be increased or
decreased from time to time, according to the provisions of the laws of the
United States.
No holder of shares of the capital stock of any class of this
Association shall have any preemptive or preferential right of subscription to
any shares of any class of stock of this Association, whether now or hereafter
authorized, or to any obligations convertible into stock of this Association,
issued,
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<PAGE> 6
or sold, nor any right of subscription to any thereof other than such,
if any, as the board of directors, in its discretion may from time to time
determine and at such price as the board of directors may from time to time fix.
Unless otherwise specified in these Articles of Association or
required by law, (1) all matters requiring shareholder action, including
amendments to the articles of Association must be approved by shareholders
owning a majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise provided in the bylaws, the record date for
determining shareholders entitled to notice of and to vote at any meeting is the
close of business on the day before the first notice is mailed or otherwise sent
to the shareholders, provided that in no event may a record date be more than
seventy days before the meeting.
SIXTH. The board of directors shall appoint one of its members
president of this Association and one of its members chairperson of the board.
The board of directors shall also have the power to appoint one or more vice
presidents, a secretary who shall keep minutes of the directors' and
shareholders' meetings and be responsible for authenticating the records of this
Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of
directors in accordance with the bylaws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and
agents of this Association.
(2) Delegate the performance of its duties, but not the
responsibility for its duties, to the officers,
employees, and agents of this Association.
(3) Fix the compensation and enter into employment
contracts with its officers and employees upon
reasonable terms and conditions, consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix
the penalty thereof.
(6) Ratify written policies authorized by this
Association's management or committees of the board.
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<PAGE> 7
(7) Regulate the manner in which any increase or decrease
of the capital of this Association shall be made;
provided, however, that nothing herein shall restrict
the power of shareholders to increase or decrease the
capital of this Association in accordance with law, and
nothing shall raise or lower from two-thirds the
percentage required for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of this
Association.
(9) Adopt bylaws, not inconsistent with law or these
Articles of Association, for managing the business and
regulating the affairs of this Association.
(10) Amend or repeal bylaws, except to the extent that the
articles of Association reserve this power in whole or
in part to shareholders.
(11) Make contracts.
(12) Generally to perform all acts that are legal for a
board of directors to perform.
SEVENTH. The board of directors shall have the power to change
the location of the main office to any other place within the limits of the City
of New York without the approval of the shareholders, and shall have the power
to establish or change the location of any branch or branches of this
Association to any other location permitted under applicable law, without the
approval of the shareholders, subject to approval by the Comptroller of the
Currency.
EIGHTH. The corporate existence of this Association shall
continue until terminated according to the laws of the United States.
NINTH. The board of directors of this Association, or any
three (3) or more shareholders owning, in the aggregate, not less than
twenty-five percent (25%) of the stock of this Association, may call a special
meeting of shareholders at any time. Unless otherwise provided by the bylaws or
the laws of the United States, or waived by shareholders, a notice of the time,
place, and purpose of every annual and special meeting of the shareholders shall
be given by first-class mail, postage prepaid, mailed at least ten, and no more
than sixty, days prior to the date of the meeting to each shareholder of record
at his/her address as shown upon the books of this Association. Unless otherwise
provided by these Articles of Association or the bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
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<PAGE> 8
TENTH. Any action required to be taken at a meeting of the
shareholders or directors or any action that may be taken at a meeting of the
shareholders or directors may be taken without a meeting if consent in writing,
setting forth the action as taken shall be signed by all the shareholders or
directors entitled to vote with respect to the matter thereof. Such action shall
be effective on the date on which the last signature is placed on the writing,
or such earlier date as is set forth therein.
ELEVENTH. Meetings of the board of directors or shareholders,
regular or special, may be held by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can simultaneously hear each other, and participation in such meeting by
such aforementioned means shall constitute presence in person at such meeting.
TWELFTH. Any person, such person's heirs, executors, or
administrators, may be indemnified or reimbursed by the Association for
reasonable expenses actually incurred in connection with any action, suit or
proceeding, whether civil or criminal or administrative, to which such person or
such person's heirs, executors, or administrators shall be made a party by
reason of such person being or having been a director, advisory director,
officer, employee, or agent of the Association or of any firm, corporation, or
organization that such person served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit or proceeding: (1) as
to which such person shall finally be adjudged to have been guilty of or liable
for gross negligence, willful misconduct or criminal acts in the performance of
such person's duties to the Association; or (2) which has been made the subject
of a compromise settlement except with the approval of a court of competent
jurisdiction, or the holders of record of a majority of outstanding shares of
the Association, or the board of directors acting by vote of directors not
parties to the same or substantially the same action, suit or proceeding,
constituting a majority of the whole number of directors; or (3) against
expenses, penalties, or other payments incurred in an administrative proceeding
or action instituted by an appropriate bank regulatory agency, which proceeding
or action results in a final order assessing civil money penalties or requiring
affirmative action by such person in the form of payment to this Association.
The foregoing right of indemnification or reimbursement shall not be exclusive
of other rights to which such person, such person's heirs, executors, or
administrators, may be entitled as a matter of law.
Such expenses actually incurred by such person in connection with such
action, suit or proceeding may be paid by this Association in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that such individual is not entitled to be indemnified
by the
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<PAGE> 9
Association. Prior to the advancement of any such expenses, the board of
directors shall determine in writing that all of the following conditions are
met: (1) such person has a substantial likelihood of prevailing on the merits;
(2) in the event such person does not prevail, such person will have the
financial capability to reimburse this Association; and (3) payment of such
expenses by this Association will not adversely affect the safety and soundness
of this Association. If at any time the board of directors believes, or should
reasonably believe, that any of the above conditions are not met, this
Association shall cease paying such expenses. Further, this Association shall
enter into a written agreement with such person specifying the conditions under
which such person shall reimburse this Association.
The Association may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying such
directors, advisory directors, officers, employees, or agents to the extent that
such indemnification is allowed in this Article Twelfth. Such insurance shall
not provide coverage of liability for any formal order issued by a regulatory
authority assessing civil money penalties against a director, advisory director,
officer, employee, or agent. Further, such insurance may, but need not be, for
the benefit of all such directors, advisory directors, officers, employees or
agents.
THIRTEENTH. These Articles of Association may be amended at
any regular or special meeting of the shareholders by the affirmative vote of
the holders of a majority of the stock of this Association, unless the vote of
the holders of a greater amount of stock is required by law, and in that case by
the vote of the holders of such greater amount. This Association's board of
directors may propose one or more amendments to these Articles of Association
for submission to the shareholders.
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SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary of U.S. Bank Trust National
Association, formerly First Trust of New York National Association, located in
the City of New York, County of New York and State of New York, and that I have
been duly appointed and am presently serving in that capacity in accordance with
the bylaws of U.S. Bank Trust National Association. I further certify that the
attached are a true and correct copy of Articles of Association of U.S. Bank
Trust National Association.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of March,
1998.
/s/ Patrick J. Crowley
--------------------------------
Patrick J. Crowley
Title: Secretary
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<PAGE> 11
EXHIBIT 4
U.S. BANK TRUST
NATIONAL ASSOCIATION
BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders,
for the election of directors and the transaction of other business, shall be
held at a time and place as the Chairman or President may designate. Notice of
such meeting shall be given at least ten days prior to the date thereof, to each
shareholder of the Association. If, for any reason, an election of directors is
not made on the designated day, the election shall be held on some subsequent
day, as soon thereafter as practicable, with prior notice thereof.
Section 1.2. Special Meetings. Except as otherwise specially provided
by law, special meetings of the shareholders may be called for any purpose, at
any time by a majority of the board of directors, or by any shareholder or group
of shareholders owning at least ten percent of the outstanding stock. Every such
special meeting, unless otherwise provided by law, shall be called upon not less
than ten days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the
board of directors may be made by the board of directors or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid only
for one meeting and any adjournments of such meeting and shall be filed with the
records of the meeting.
Section 1.5. Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
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<PAGE> 12
ARTICLE II
Directors
Section 2.1. Board of Directors. The board of directors (hereinafter
referred to as the "board"), shall have power to manage and administer the
business and affairs of the Association. All authorized corporate powers of the
Association shall be vested in and may be exercised by the board.
Section 2.2. Powers. In addition to the foregoing, the board of
directors shall have and may exercise all of the powers granted to or conferred
upon it by the Articles of Association, the Bylaws and by law.
Section 2.3. Number. The board shall consist of a number of members to
be fixed and determined from time to time by resolution of the board or the
shareholders at any meeting thereof, in accordance with the Articles of
Association.
Section 2.4. Organization Meeting. The newly elected board shall meet
for the purpose of organizing the new board and electing and appointing such
officers of the Association as may be appropriate. Such meeting shall be held on
the day of the election or as soon thereafter as practicable, and, in any event,
within thirty days thereafter. If, at the time fixed for such meeting, there
shall not be a quorum present, the directors present may adjourn the meeting
until a quorum is obtained.
Section 2.5. Regular Meetings. The regular meetings of the board shall
be held, without notice, as the Chairman or President may designate and deem
suitable.
Section 2.6. Special Meetings. Special meetings of the board may be
called by the Chairman or the President of the Association, or at the request of
two or more directors. Each member of the board shall be given notice stating
the time and place of each such meeting.
Section 2.7. Quorum. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but fewer may
adjourn any meeting. Unless otherwise provided, once a quorum is established,
any act by a majority of those constituting the quorum shall be the act of the
board.
Section 2.8. Vacancies. When any vacancy occurs among the directors,
the remaining members of the board may appoint a director to fill such vacancy
at any regular meeting of the board, or at a special meeting called for that
purpose.
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ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The board may appoint
persons, who need not be directors, to serve as advisory directors on an
advisory board of directors established with respect to the business affairs of
either this Association alone or the business affairs of a group of affiliated
organizations of which this Association is one. Advisory directors, shall have
such powers and duties as may be determined by the board, provided, that the
board's responsibility for the business and affairs of this Association shall in
no respect be delegated or diminished.
Section 3.2. Audit Committee. The board shall appoint an Audit
Committee which shall consist of at least two Directors of the Association or of
an affiliate of the Association. If legally permissible, the Board may determine
to name itself as the Audit Committee. The Audit Committee shall direct and
review audits of the Association's fiduciary activities.
The members of the Audit Committee shall be appointed each year and
shall continue to act until their successors are named. The Audit Committee
shall have power to adopt its own rules and procedures and to do those things
which in the judgment of such Committee are necessary or helpful with respect to
the exercise of its functions or the satisfaction of its responsibilities.
Section 3.3. Executive Committee. The board may appoint an Executive
Committee which shall consist of at least three directors and which shall have,
and may exercise, all the powers of the board between meetings of the board or
otherwise when the board is not meeting.
Section 3.4. Other Committees. The board may appoint, from time to
time, committees of one or more persons who need not be directors, for such
purposes and with such powers as the board may determine. In addition, either
the Chairman or the President may appoint, from time to time, committees of one
or more officers, employees, agents or other persons, for such purposes and with
such powers as either the Chairman or the President deems appropriate and
proper.
Whether appointed by the board, the Chairman, or the President, any
such Committee shall at all times be subject to the direction and control of the
board.
Section 3.5. Meetings. Minutes and Rules. An advisory board of
directors and/or committee shall meet as necessary in consideration of the
purpose of the advisory board of directors or committee, and shall maintain
minutes in sufficient detail to indicate actions taken or recommendations made;
unless required by the members, discussions, votes or other specific details
need not be reported. An advisory board of directors or a committee may, in
consideration of its purpose, adopt its own rules for the exercise of any of its
functions or authority.
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ARTICLE IV
Officers and Employees
Section 4.1. Chairman of the Board. The board may appoint one of its
members to be Chairman of the board to serve at the pleasure of the board. The
Chairman shall supervise the carrying out of the policies adopted or approved by
the board; shall have general executive powers, as well as the specific powers
conferred by these Bylaws; shall also have and may exercise such powers and
duties as from time to time may be conferred upon or assigned by the board.
Section 4.2. President. The board may appoint one of its members to be
President of the Association. In the absence of the Chairman, the President
shall preside at any meeting of the board . The President shall have general
executive powers, and shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Office of President, or
imposed by these Bylaws. The President shall also have and may exercise such
powers and duties as from time to time may be conferred or assigned by the
Board.
Section 4.3. Vice President. The board may appoint one or more Vice
Presidents who shall have such powers and duties as may be assigned by the board
and to perform the duties of the President on those occasions when the President
is absent, including presiding at any meeting of the board in the absence of
both the Chairman and President.
Section 4.4. Secretary. The board shall appoint a Secretary, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these Bylaws to be given; shall be
custodian of the corporate seal, records, document and papers of the
Association; shall provide for the keeping of proper records of all transactions
of the Association; shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Secretary, or imposed
by these Bylaws; and shall also perform such other duties as may be assigned
from time to time, by the Board .
Section 4.5. Other Officers. The board may appoint, and may authorize
the Chairman or the President to appoint, any officer as from time to time may
appear to the board, the Chairman or the President to be required or desirable
to transact the business of the Association. Such officers shall exercise such
powers and perform such duties as pertain to their several offices, or as may be
conferred upon or assigned to them by these Bylaws, the board, the Chairman or
the President.
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Section 4.6. Tenure of Office. The Chairman or the President and all
other officers shall hold office for the current year for which the board was
elected, unless they shall resign, become disqualified, or be removed. Any
vacancy occurring in the Office of Chairman or President shall be filled
promptly by the board.
Any officer elected by the board or appointed by the Chairman or the
President may be removed at any time, with or without cause, by the affirmative
vote of a majority of the board or, if such officer was appointed by the
Chairman or the President, by the Chairman or the President, respectively.
ARTICLE V
Stock
Section 5.1. Shares of stock shall be transferable on the books of the
Association, and a transfer book shall be kept in which all transfers of stock
shall be recorded. Every person becoming a shareholder by such transfer shall,
in proportion to such person's shares, succeed to all rights of the prior holder
of such shares. Each certificate of stock shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided,
however, that if the use of a seal is required by, or is otherwise convenient or
advisable pursuant to, the laws or regulations of any jurisdiction, the
following seal may be used, and the Chairman, the President, the Secretary and
any Assistant Secretary shall have the authority to affix such seal.
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts,
orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, guarantees, proxies and other instruments or
documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a
fiduciary capacity or otherwise, by any officer of the Association, or such
employee or agent as may be designated from time to time by the board by
resolution, or by the Chairman or the President by written instrument, which
resolution or instrument shall be certified as in effect by the Secretary or an
Assistant Secretary of the Association. The provisions of this section are
supplementary to any other provision of the Articles of Association or Bylaws.
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<PAGE> 16
Section 7.2. Records. The Articles of Association, the Bylaws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for the purpose. The minutes or each meeting shall be signed by the Secretary,
or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association
files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity
shall be invested according to the instrument establishing the fiduciary
relationship and according to law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument
shall be invested in investments in which corporate fiduciaries may invest under
law.
Section 7.5. Notice. Whenever notice is required by the Articles of
Association, the Bylaws or law, such notice shall be by mail, postage prepaid,
telegram, in person, or by any other means by which such notice can reasonably
be expected to be received, using the address of the person to receive such
notice, or such other personal data, as may appear on the records of the
Association. Prior notice shall be proper if given not more than 30 days nor
less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The association shall indemnify to the full extent
permitted by, and in the manner permissible under, the Articles of Association
and the laws of the United States of America, as applicable and as amended from
time to time, any person made, or threatened to be made, a party to any action,
suit or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person is or was a director, advisory director,
officer or employee of the Association, or any predecessor of the Association,
or served any other enterprise as a director or officer at the request of the
Association or any predecessor of the Association.
Section 8.2. The board in its discretion may, on behalf of the
Association, indemnify any person, other than a director, advisory director,
officer or employee, made a party to any action, suit or proceeding by reason of
the fact that such person is or was an agent of the Association or any
predecessor of the Association serving in such capacity at the request of the
Association or any predecessor of the Association.
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ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and
subject to appropriate provisions of law, and may be amended, altered or
repealed, at any regular or special meeting of the board.
Section 9.2. A copy of the Bylaws, with all amendments, shall at all
times be kept in a convenient place at the main office of the Association, and
shall be open for inspection to all shareholders during Association hours.
----------------------
I, Patrick J. Crowley, hereby certify that: (i) I am the duly
constituted secretary of U.S. Bank Trust National Association (the
"Association"), and secretary of its board of directors, and as such officer am
the official custodian of its records; and (ii) the foregoing bylaws are the
bylaws of the Association, and all of them are now lawfully in force and effect.
I have hereunto affixed my official signature, in the City of New York,
on the 30th day of March, 1998.
/s/ Patrick J. Crowley
----------------------------------
Name: Patrick J. Crowley
Title: Secretary
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<PAGE> 18
EXHIBIT 7
U.S. BANK TRUST NATIONAL ASSOCIATION
(FORMERLY FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION)
STATEMENT OF FINANCIAL CONDITION
AS OF 12/31/97
($000's)
<TABLE>
<CAPTION>
12/31/97
--------
<S> <C>
ASSETS
Cash and Due From Depository Institutions $ 37,537
Federal Reserve Stock 3,439
Fixed Assets 698
Intangible Assets 74,459
Other Assets 6,072
--------
TOTAL ASSETS $122,205
LIABILITIES
Other Liabilities 8,020
--------
TOTAL LIABILITIES 8,020
EQUITY
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (7,747)
--------
TOTAL EQUITY CAPITAL 114,185
TOTAL LIABILITIES AND EQUITY CAPITAL $122,205
</TABLE>
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ Catherine F. Donohue
--------------------------------------
Vice President
Date: March 30, 1998
