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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 12, 1999
REGISTRATION NO. 333-
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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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TIFFANY & CO.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 13-3228013
(STATE OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
727 FIFTH AVENUE, NEW YORK, NEW YORK 10022, (212) 755-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PATRICK B. DORSEY, ESQ.
C/O TIFFANY & CO. 727 FIFTH AVENUE, NEW YORK, NEW YORK 10022, (212) 755-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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WITH A COPY TO:
STEVEN R. FINLEY, ESQ.
GIBSON, DUNN & CRUTCHER LLP, 200 PARK AVENUE, NEW YORK, NEW YORK 10166, (212)
351-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
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 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
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<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par
value(2).................... -- -- --
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Debt securities(3)............ -- 100% --
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Total............... $125,000,000 -- -- $34,750
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</TABLE>
(1) Such amount represents the aggregate offering price of the securities
registered hereunder. These figures are estimates made solely for the
purpose of calculating the registration fee pursuant to Rule 457(o).
Exclusive of accrued interest, if any, on the debt securities.
(2) Such indeterminate number of shares of Common Stock as may, from time to
time, be issued at indeterminate prices, including shares of Common Stock
issuable upon conversion of any debt securities that are convertible into
Common Stock.
(3) The debt securities to be offered hereunder will consist of one or more
series of senior debt securities or subordinated debt securities or any
combination thereof, as more fully described herein.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JULY 12, 1999
TIFFANY & CO.
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$125,000,000
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COMMON STOCK
DEBT SECURITIES
By this prospectus, we may from time to time offer shares of common stock
or debt securities. We will provide specific terms of the offering of these
securities in supplements to this prospectus. You should read this prospectus
and any supplement carefully before you invest.
------------------------
SEE "RISK FACTORS" ON PAGE 4 OF THIS PROSPECTUS AND THOSE RISK FACTORS
CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT, IF ANY, FOR INFORMATION YOU
SHOULD CONSIDER BEFORE BUYING THE SECURITIES.
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This prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999.
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the SEC
using a "shelf" registration process. Under this shelf process, we may sell any
combination of securities described in this prospectus in one or more offerings
up to a total dollar amount of $125,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus and the applicable
prospectus supplement together with the additional information described under
the heading "Where You Can Find More Information."
The registration statement that contains this prospectus, including the
exhibits to the registration statement, contains additional information about us
and the securities we may offer under this prospectus. You can read that
registration statement at the SEC's web site or at the SEC's offices mentioned
under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities
and Exchange Commission. Our SEC filings are also available over the Internet at
the SEC's web site at http://www.sec.gov. You may also read and copy any
document we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
more information on the public reference rooms and their copy charges. You may
also inspect our SEC reports and other information at the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
We have filed a registration statement on Form S-3 with the SEC covering
the common stock and debt securities. For further information on Tiffany & Co.
and the securities we are offering in this prospectus, you should refer to our
registration statement, its exhibits and the documents incorporated by reference
therein. This prospectus summarizes material provisions of contracts and other
documents that we refer you to. Since the prospectus and the accompanying
prospectus supplement may not contain all the information that you may find
important, you should review the full text of those documents.
You should rely only on the information contained or incorporated by
reference in this prospectus and the accompanying prospectus supplement. We have
not authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus or in the accompanying prospectus
supplement, as well as information we previously filed with the SEC and
incorporated by reference, is accurate only as of the date on the front cover of
this prospectus or the accompanying prospectus supplement. Our business,
financial condition, results of operations and prospects may have changed since
those dates.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means:
- incorporated documents are considered part of the prospectus,
- we can disclose important information to you by referring you to those
documents and
- information that we file with the SEC will automatically update and
supersede this prospectus.
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We incorporate by reference the documents listed below which we filed with
the SEC under the Securities Exchange Act of 1934 (the "Exchange Act"):
- our Annual Report on Form 10-K for the fiscal year ended January 31,
1999,
- our Quarterly Report on Form 10-Q for the quarter ended April 30, 1999,
- our Current Reports on Form 8-K filed March 4, 1999 and May 21, 1999,
- our definitive Proxy Statement filed with the SEC on April 8, 1999 for
our Annual Meeting of Stockholders held on May 20, 1999 and
- the description of our common stock contained in the Registration
Statement filed with the SEC on Form S-1 (Registration No. 33-12818), as
most recently amended in the prospectus for the our common stock dated
May 5, 1987, as supplemented by the Registration Statement dated November
18, 1988, filed with the SEC on Form 8-A, as most recently amended by
Form 8-A/A dated September 24, 1998 and filed on September 25, 1998.
We also incorporate by reference each of the following documents that we
will file with the SEC (1) after the date of the filing of the registration
statement of which this prospectus forms a part and prior to its effectiveness
and (2) until all the securities offered by this prospectus have been sold:
- reports filed under Sections 13(a) and (c) of the Exchange Act,
- definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meeting and
- any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address:
Tiffany & Co.
Attention: Investor Relations Department
727 Fifth Avenue
New York, New York 10022
Phone: (212) 605-4016
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THE COMPANY
We are the renowned jeweler and specialty retailer whose products are
distinguished by their design, quality and value. Tiffany's principal products
are fine jewelry, timepieces, sterling silver goods, china, crystal, stationery,
writing instruments, fragrances and personal accessories sold under the TIFFANY
& CO. trademark. From our roots at a single New York City store, we have
expanded to locations in the Americas, Asia and Europe. Our products are now
sold in more than 100 TIFFANY & CO. stores and boutiques, as well as through
other fine jewelers and select department stores, and through direct marketing
to catalog and business customers.
We pursue long-term growth through our strategies for expansion,
merchandising, marketing and customer service -- always focused on our goal of
being the world's most respected jewelry retailer.
RISK FACTORS
You should carefully consider the following risk factors as well as the
other information included and incorporated by reference in this prospectus and
the accompanying prospectus supplement before deciding to invest in our common
stock or debt securities, as the case may be.
AS WE DEPEND ON THE JAPANESE MARKET FOR A SIGNIFICANT PORTION OF OUR OPERATING
EARNINGS, A DOWNTURN IN THE JAPANESE MARKET COULD ADVERSELY AFFECT OUR BUSINESS.
We derive a significant share of operating earnings from our operations in
Japan. That share is larger than Japan's percentage of our total net sales.
Total Japan sales represented approximately 27% of our net sales in each of our
fiscal years ended January 31, 1997, 1998 and 1999. Therefore, a substantial
decline in Japan sales would likely have a significant adverse effect on our
earnings. Also, our ability to meet sales and earnings estimates for any single
fiscal year is based upon the assumption that there will not be a substantial
adverse change in the exchange relationship between the Japanese yen and the
U.S. dollar throughout the fiscal year.
Our commercial relationship with Mitsukoshi, Ltd. and Mitsukoshi's ability
to continue as a leading department store operator have been and will continue
to be substantial factors in our continued success in Japan. TIFFANY & CO.
boutiques are located in 30 Mitsukoshi department stores and other retail
locations operated by Mitsukoshi in Japan. We also operate 13 boutiques in
department stores other than Mitsukoshi, in locations within Japan but outside
of Tokyo, and plan to open more.
In recent years, the Japanese department store industry has, in general,
suffered declining sales. There is a risk that these financial difficulties will
force consolidations or store closings. Should one or more Japanese department
store operators, such as Mitsukoshi, elect or be required to close one or more
stores now housing a TIFFANY & CO. boutique, our sales and earnings would be
reduced while alternate premises are being secured.
IF CONSUMERS REDUCE THEIR DISCRETIONARY PURCHASES OF LUXURY GOODS AS A RESULT OF
ECONOMIC CONDITIONS OR OTHERWISE, OUR BUSINESS COULD BE ADVERSELY AFFECTED.
As is the case with any retailer, wholesaler or direct marketer of consumer
goods, our financial success is partially dependent on economic conditions and
consumer attitudes. TIFFANY & CO. products are, or are widely perceived to be,
"luxury" goods. Therefore, purchases of TIFFANY & CO. products are often
discretionary. Low or negative growth in the economy or in the financial markets
could reduce discretionary spending and, accordingly, reduce our sales.
WE ARE DEPENDENT ON TWO LICENSE AGREEMENTS FOR THE DESIGN OF A SIGNIFICANT
PORTION OF OUR JEWELRY. IF EITHER OR BOTH OF THESE AGREEMENTS WERE TO BE
TERMINATED BY THE LICENSORS, OUR BUSINESS COULD BE ADVERSELY AFFECTED.
We have been the sole licensee for jewelry designed by Elsa Peretti since
1974 and by Paloma Picasso since 1980. In the fiscal year ended January 31,
1999, Ms. Peretti's designs represented approximately 15% of our total net
sales, and sales of Ms. Picasso's designs represented approximately 3%
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of our total net sales. Ms. Peretti and Ms. Picasso each retain ownership of
their respective trademarks and of the copyrights for their respective designs.
Written license agreements exist between Ms. Peretti and Tiffany and between Ms.
Picasso and Tiffany, but those agreements may be terminated by either party
following six months' notice to the other party. Our operating results could be
adversely affected if either license agreement were terminated or substantially
changed.
THE SUPPLY AND PRICE OF ROUGH DIAMONDS ARE SIGNIFICANTLY INFLUENCED BY A SINGLE
ENTITY, OVER WHICH WE EXERT NO CONTROL. IN ADDITION, WE RELY UPON THREE KEY
VENDORS FOR THE SUPPLY OF OUR CUT DIAMONDS.
Diamond jewelry accounts for approximately 21% of our net sales. The supply
and price of rough (uncut and unpolished) diamonds in the principal world
markets have been and continue to be significantly influenced by a single
entity, the Central Selling Organization of De Beers Centenary AG, a Swiss
corporation. The Central Selling Organization supplies approximately 70% of the
world market for rough, gem-quality diamonds. Through affiliates, the Central
Selling Organization continues to exert a significant influence on the demand
for polished diamonds by its advertising and marketing efforts throughout the
world.
The availability and price of diamonds to the Central Selling Organization
and our suppliers may be, to some extent, dependent on the political situation
in diamond-producing countries, the opening of new mines and the continuance of
the prevailing supply and marketing arrangements for rough diamonds. Our
operations may be adversely affected by sustained interruption in the supply of
rough diamonds, an over-abundance of supply or a substantial change in the
marketing arrangements described above.
The Central Selling Organization is testing a program to authenticate and
"brand" cut and polished diamonds with the Central Selling Organization's
proprietary trademark. Such a program, coupled with a change in the marketing
and advertising policies of the Central Selling Organization's affiliates, could
affect consumer demand for diamonds that do not bear the Central Selling
Organization's trademark. We may or may not carry Central Selling
Organization-branded diamonds in the future.
We purchase cut diamonds principally from three key vendors. Were our trade
relations with one or more of these vendors to be disrupted, our sales would be
adversely affected in the short term until alternative supply arrangements could
be established.
WE ARE SUBJECT TO INTENSE COMPETITION, PARTICULARLY OUTSIDE THE UNITED STATES
AND JAPAN.
We encounter significant competition in all of our product lines from other
third-party providers, some of which specialize in just one area in which we are
active. Many of our competitors have established reputations for style and
expertise similar to ours and compete on the basis of value. Other jewelers and
retailers compete primarily through advertised price promotion. We compete on
the basis of quality and value and do not engage in price promotional
advertising.
The international marketplace for our products is highly competitive.
Although we believe that TIFFANY & CO. is known internationally, and although
Tiffany did operate retail stores in London and Paris prior to World War II, we
did not have a retail presence in Europe in the post-war era until 1986.
Accordingly, consumer awareness of Tiffany and our products is not as strong in
Europe as in the United States or in Japan, where Tiffany has distributed its
products for many years. We expect that our overseas stores will continue to
experience intense competition from established retailers in international
cities where TIFFANY & CO. stores are or may eventually be located.
We also face increasing competition in the area of direct marketing. A
growing number of direct sellers compete for access to the same mailing lists of
known purchasers of luxury goods. In marketing service awards and business gifts
to corporations and other organizations, we face numerous competitors who sell a
wide variety of products at a greater price range than we sell, as we have
chosen to offer a more limited selection in order to adhere to our established
quality standards.
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OUR RESULTS OF OPERATIONS ARE DEPENDENT ON OUR ABILITY TO SUCCESSFULLY IMPLEMENT
OUR RETAIL
EXPANSION PROGRAM.
Our ability to continue our scheduled worldwide retail expansion program is
dependent upon our ability to obtain desirable locations on suitable lease terms
and complete construction on a timely basis. In addition, the timing and success
of expansion outside the United States will depend upon import taxes and duties
and the extent of consumer demand for TIFFANY & CO. products in overseas
markets. These factors vary from market to market.
WE MUST CONTINUE TO UPDATE AND INTEGRATE OUR INVENTORY MANAGEMENT AND
DISTRIBUTION SYSTEMS IN ORDER TO KEEP PACE WITH OUR GROWTH.
As we have grown, so have the demands placed on our distribution and
inventory management systems. Our ability to sustain growth in sales and
profitability is dependent upon our ability to successfully develop and
integrate new systems, particularly for inventory management, into our
operations and to further improve warehousing and distribution productivity.
AS OUR BUSINESS IS VERY SEASONAL, WE RELY ON A STRONG FOURTH QUARTER EACH YEAR.
Our business is seasonal in nature, with the fourth quarter typically
representing a proportionally greater percentage of annual sales, earnings from
operations and cash flow. A downturn in economic conditions or consumer spending
on luxury goods in the fourth quarter of any year would adversely affect our
sales and earnings.
USE OF PROCEEDS
Unless otherwise described in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities offered by this
prospectus for general corporate purposes.
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 ENDED
FISCAL YEAR ENDED JANUARY 31, APRIL 30,
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1995 1996 1997 1998 1999 1998 1999
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges.................. 3.39x 4.20x 6.21x 7.88x 8.03x 4.87x 5.00x
</TABLE>
We have computed these ratios by dividing earnings available for fixed
charges for each period by fixed charges for that period. For purposes of these
computations, we calculated "earnings" by adding our pre-tax income and our
fixed charges. We calculated "fixed charges" by adding the interest we pay on
our indebtedness, the amount we amortize for debt financing costs and our
estimate of the amount of the interest element within our rental expense, which
was assumed to be equal to one-third of our rental expense.
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<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
The following description is a summary of certain of the material
provisions of the Indenture (as defined below) and the Debt Securities. This
description does not restate the Indenture or the terms of the Debt Securities
in their entirety. We urge you to read the Indenture because it, and not this
description, will define your rights as a holder of the Debt Securities. The
form of the Indenture is filed as an exhibit to the Registration Statement of
which this prospectus is a part.
The following description relates generally to every series of Debt
Securities. The particular terms of any series of Debt Securities will be
described in the applicable prospectus supplement. If so indicated in the
applicable prospectus supplement, the terms of any such series may differ from
the terms set forth below.
GENERAL
Any series of Debt Securities will be issued under an Indenture (the
"Indenture"), dated as of , between Tiffany & Co. and
, as trustee (the "Trustee").
The Indenture does not limit the aggregate principal amount of all Debt
Securities or of any particular series of Debt Securities that may be issued
thereunder. The Indenture provides that Debt Securities may be issued from time
to time in one or more series, in each case with the same or various maturities,
at par or at a discount. The Indenture does not limit the amount of other debt
that we may issue and does not contain financial or similar restrictive
covenants. The Debt Securities will be direct, unsecured obligations of Tiffany
& Co.
We expect from time to time to incur additional indebtedness. The Indenture
does not prohibit or limit our incurrence of additional indebtedness. The
Indenture provides that there may be more than one Trustee under the Indenture
with respect to different series of Debt Securities.
The Indenture does not contain any provision intended to provide protection
to holders of Debt Securities against a sudden or dramatic decline in our credit
quality that could, for example, result from a takeover, recapitalization,
special dividend or other restructuring.
The applicable prospectus supplement will describe the following terms of
the series of Debt Securities in respect of which this prospectus is being
delivered:
- the title of such Debt Securities and whether they will be senior
securities or subordinated securities;
- any limit upon the aggregate principal amount of such Debt Securities and
the percentage of such principal amount at which such Debt Securities may
be issued;
- the date or dates on which the principal of such Debt Securities is
scheduled to become payable;
- the rate or rates, which may be fixed or variable, at which such Debt
Securities will bear interest, if any, or the formula by which interest
will be calculated, the date or dates from which interest will accrue,
the dates on which any such interest will be payable and the regular
record date for the interest payable on any interest payment date;
- if other than The City of New York, the place or places where the
principal of and premium, if any, and interest on Debt Securities will be
payable, any Debt Securities may be surrendered for registration of
transfer or for exchange and notices and demands in respect of the Debt
Securities may be served;
- the price or prices at which, the period or periods within which and the
terms and conditions upon which the Debt Securities may be redeemed, in
whole or in part, at our option;
- our obligation, if any, to redeem, purchase or repay Debt Securities
pursuant to any sinking fund or analogous provision or at the option of
the holder and the price or prices at which, the period or
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periods within which and the other terms and conditions on which the Debt
Securities shall be redeemed, purchased or repaid, in whole or in part;
- whether the Debt Securities are to be issued as fully registered
securities, bearer securities or both, and with or without coupons or
both;
- whether the Debt Securities will be issued in whole or in part in the
form of a Global Security and, in that case, the Depositary (if other
than the Depository Trust Company) for such Global Security;
- any additional covenants applicable to the Debt Securities;
- the denominations in which registered Debt Securities of the series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which bearer Debt Securities
of such series, if any, shall be issuable if other than the denomination
of $5,000;
- if other than the principal amount thereof, the portion of the principal
amount of such Debt Securities that will be payable upon declaration of
acceleration of the maturity thereof;
- the currency or currency unit of payment of principal of and premium, if
any, and interest on such Debt Securities, and any index used to
determine the amount of principal of and premium, if any, and interest on
such Debt Securities;
- if other than as set forth in the applicable Indenture, any event of
default with respect to the Debt Securities;
- the form of the Debt Securities;
- whether the Debt Securities will be convertible into or exchangeable for
any other securities and the applicable terms and conditions of
conversion or exchange;
- if other than the Trustee, the persons who will be the security registrar
and the paying agent for the Debt Securities and the place or places
where the security register for the Debt Securities will be maintained;
- if warrants for the Debt Securities are to be issued, the form of such
warrants, the circumstances under and the manner in which the warrants
may be exercised, and any other term or condition regarding the warrants;
and
- any other terms of such Debt Securities.
PAYMENT
Unless otherwise indicated in the applicable prospectus supplement,
principal of, and any premium and interest, if any, on Debt Securities will be
payable, and Debt Securities may be presented for registration of transfer, at
our agency or office maintained for such purpose in the Borough of Manhattan,
The City of New York.
FORM, REGISTRATION AND TRANSFER
The Indenture provides that Debt Securities may be issued in fully
registered form or as bearer securities with coupons attached. Unless otherwise
indicated in the applicable prospectus supplement, Debt Securities will be
issued only in fully registered form, without coupons, in denominations of
$1,000 and any integral multiple of $1,000. The Indenture provides that Debt
Securities of any series may be issuable in permanent global form. No service
charge will be made for any registration of transfer or exchange of the Debt
Securities, but we may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with any registration of
transfer or exchange.
The Debt Securities may be issued as Original Issue Discount Securities to
be offered and sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other
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special considerations applicable to any such Original Issue Discount Securities
will be described in the applicable prospectus supplement. "Original Issue
Discount Security" means any Debt Security that provides for an amount less than
its principal amount to be due and payable upon the declaration of acceleration
of the maturity of the Debt Security in accordance with the terms of the
Indenture.
The applicable prospectus supplement relating to any series of Debt
Securities that are Original Issue Discount Securities will describe the
particular provisions relating to acceleration of the maturity of a portion of
the principal amount of such series of Original Issue Discount Securities upon
the occurrence of an Event of Default.
COVENANTS
In the Indenture, we have agreed:
(1) to duly and punctually pay the principal of and any premium and
interest on the Debt Securities of each series;
(2) to maintain an office where Debt Securities may be presented for
payment, for registration of transfer and for exchange, and where notices
and demands may be served;
(3) to preserve our corporate existence, rights and franchises,
unless, in our good faith judgment, the failure to keep in full force and
effect such corporate existence, rights or franchises could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect;
(4) to pay all taxes, assessments, governmental charges or levies
imposed on us or any of our properties, assets, income or franchises that
have or might become a Lien on our properties or assets if unpaid, other
than taxes, assessments, governmental charges or levies being contested in
good faith and in appropriate proceedings for which we have established
adequate reserves or which, if unpaid, would not reasonably be expected to
have a material adverse effect;
(5) to maintain and keep our property in good repair, working order
and condition, unless we have concluded that discontinuing such maintenance
would not reasonably be expected to have a material adverse effect; and
(6) to maintain proper books of records and accounts in accordance
with normal business practice.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that neither we nor any of our subsidiaries may
consolidate with or merge into any other person or convey, transfer or lease its
respective properties and assets (determined on a consolidated basis)
substantially as an entirety to any person unless:
(1) (a) we or one of our subsidiaries is the surviving corporation or
(b) the person formed by such consolidation or into which we or one of our
subsidiaries is merged or the person which acquires our properties and
assets is a person organized and existing under the laws of the United
States, any State thereof or the District of Columbia and such person
expressly assumes, by a supplemental indenture, the payment of the
principal of and any premium and interest on the Debt Securities and the
performance of our other covenants under the Indenture;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time or both, would
become an Event of Default, has happened and is continuing; and
(3) we deliver to the Trustee Officers' Certificates and Opinions of
Counsel.
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DEFAULTS
An "Event of Default" is defined in the Indenture, with respect to Debt
Securities of any series issued thereunder, as:
(1) we default in the payment of any installment of interest upon any
of the Debt Securities of that series when due, and continuance of that
default for a period of 30 days;
(2) we default in the payment of principal of or any premium on any
Debt Security of that series when due at maturity, upon redemption, by
declaration or otherwise;
(3) we default in the payment of any sinking fund installment or
analogous obligation when due in respect of Debt Securities of that series;
(4) we or any of our subsidiaries default (a) in the payment of any
principal of or premium or interest on any other indebtedness, or the
obligation to repurchase or acquire any other indebtedness, that is
outstanding in an aggregate principal amount of at least $ million
beyond any period of grace provided with respect thereto or (b) in the
performance of or compliance with any term of any evidence of any of our
other indebtedness in an aggregate outstanding principal amount at least
$ million or of any mortgage, indenture or other agreement relating
thereto or any other condition exists, and as a consequence of such default
or condition such other indebtedness has become, or has been declared (or
one or more persons are entitled to declare such indebtedness to be), due
and payable before its stated maturity or before its regularly scheduled
dates of payment;
(5) a final judgment or order for the payment of money in excess of
$ million shall be entered against us or any of our subsidiaries and
such judgment or order is not discharged or stayed within 60 days after
entry of such judgment or order;
(6) we fail to observe or perform any other of our covenants or
agreements in the Debt Securities of that series or the Indenture and
continuance of such failure for a period of 30 days after the date on which
written notice of such failure has been given by the Trustee or the holders
of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that series; and
(7) certain events of bankruptcy, insolvency or reorganization of
Tiffany or any of our subsidiaries shall have occurred.
The Indenture provides that, if any Event of Default with respect to Debt
Securities of any series at the time outstanding occurs and is continuing,
either the Trustee or the holders of at least 25% in aggregate principal amount
of the outstanding Debt Securities of that series may declare the principal
amount (or, if the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all Debt Securities of that series to be due and
payable immediately. Upon certain conditions, such declaration may be annulled
and past defaults (except a default in payment of principal of or any premium or
interest on the Debt Securities of that series) may be waived by the holders of
a majority in principal amount of the outstanding Debt Securities of that series
on behalf of the holders of all Debt Securities of that series. In the event of
the bankruptcy, insolvency or reorganization of Tiffany or any of our
subsidiaries, the claims of holders of the Debt Securities would be subject to
the broad equity power of a United States Bankruptcy Court and to the
determination by that court of the nature of the rights of such holders.
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee upon the occurrence and continuation of an Event of Default
to act with the required standard of care, to be indemnified by the holders of
any series of outstanding Debt Securities thereunder before proceeding to
exercise any right or power under the Indenture at the request of the holders of
such series of Debt Securities. The Indenture provides that the holders of a
majority in aggregate principal amount of outstanding Debt Securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or other power
conferred on the Trustee, with respect to the Debt Securities of that series.
The Trustee may decline to act if such direction is contrary to law or the
Indenture or would involve the Trustee in personal liability.
10
<PAGE> 12
Each year, we will file with the Trustee a certificate as to compliance
with all conditions and covenants in the Indenture.
DEFEASANCE AND DISCHARGE
The terms of any series of Debt Securities may provide that we may
terminate certain of our obligations under the Indenture with respect such
series of Debt Securities by:
(1) depositing irrevocably with the Trustee for such series as trust
funds in trust:
(a) in the case of Debt Securities denominated in a foreign
currency, money in such foreign currency or Foreign Government
Obligations of the foreign government or governments issuing such
foreign currency,
(b) in the case of Debt Securities denominated in U.S. dollars,
U.S. dollars or U.S. Government Obligations, or
(c) a combination of money and U.S. Government Obligations or
Foreign Government Obligations, as applicable,
in each case in an amount that through the payment of principal,
premium, if any, or interest in respect thereof in accordance with their
terms will provide without reinvestment, not later than one business day
before the due date of any payment, sufficient money to pay the
principal of, premium, if any, and interest on the Debt Securities of
such series as they are due; and
(2) no Event of Default or event that, with notice or lapse of time or
both would become an Event of Default with respect to the Debt Securities
of that series, shall have occurred and be continuing;
(3) we have paid all other amounts payable with respect to the Debt
Securities of that series;
(4) such deposit will not result in a breach or violation of the
Indenture or any other agreement or instrument to which we are a party; and
(5) we shall have delivered an opinion of independent counsel that the
holders of the Debt Securities of that series will have no federal income
tax consequences as a result of such deposit and termination.
Such termination will not relieve us of our obligation to pay when due the
principal of, any premium and interest on the Debt Securities of such series if
the Debt Securities of such series are not paid from the money, Foreign
Government Obligations or U.S. Government Obligations held by the Trustee.
"U.S. Government Obligations" means securities that are direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, that, in either case, are not
callable or redeemable at the option of the issuer thereof. "Foreign Government
Obligations" means securities denominated in a foreign currency that are direct
obligations of a foreign government for the payment of which its full faith and
credit is pledged or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of a foreign government the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
such foreign government, that, in either case, are not callable or redeemable at
the option of the issuer thereof.
The applicable prospectus supplement will state whether any defeasance
provisions of the Indenture will apply to the Debt Securities offered thereby.
MODIFICATION AND WAIVER
Certain modifications and amendments of the Indenture may be made by
Tiffany and the Trustee only with the consent of the holders of not less than a
majority in aggregate principal amount of the
11
<PAGE> 13
outstanding Debt Securities of each series issued under the Indenture and
affected by the modification or amendment. No modification or amendment, without
the consent of the holder of each outstanding Debt Security issued under the
Indenture and affected thereby, may:
(1) change the stated maturity of the principal of or any premium or
any interest installment on, any such Debt Security;
(2) reduce the principal amount of any such Debt Security or any
premium or interest on any such Debt Security;
(3) reduce the amount of principal payable upon acceleration of the
maturity of any Original Issue Discount Security;
(4) change the place of payment where, or currency in which, any
principal of, or any premium or interest on, any such Debt Security is
payable;
(5) impair the right to institute suit for the enforcement of any such
payment on or after its stated maturity;
(6) reduce the percentage in principal amount of outstanding Debt
Securities of any series the consent of the holders of which is necessary
to modify or amend the Indenture or waive any default or Event of Default
thereunder; or
(7) modify the foregoing requirements or reduce the percentage of
aggregate principal amount of outstanding Debt Securities of any series
required to be held by holders seeking to waive compliance with certain
provisions of the Indenture or seeking to waive certain defaults.
The holders of not less than a majority in aggregate principal amount of
the outstanding Debt Securities of any series, on behalf of the holders of all
Debt Securities of that series, may waive, insofar as that series is concerned,
our compliance with certain provisions of the Indenture. The holders of not less
than a majority in aggregate principal amount of the outstanding Debt Securities
of any series may on behalf of the holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except a
default in the payment of the principal of, or any premium or interest on, any
Debt Security of that series or in respect of a covenant or provision that under
the Indenture cannot be modified or amended without the consent of the holder of
each outstanding Debt Security issued thereunder of the series affected.
We and the Trustee may make other modifications and amendments to the
Indenture without the consent of holders of the outstanding Debt Securities.
The Indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding Debt Securities issued under such
Indenture have given any request, demand, authorization, direction, notice,
consent or waiver thereunder or are present at a meeting of holders of Debt
Securities for quorum purposes:
(1) the principal amount of an Original Issue Discount Security that
will be deemed to be outstanding will be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon acceleration of the maturity thereof, and
(2) the principal amount of a Debt Security denominated in a foreign
currency or currency unit will be the U.S. dollar equivalent, determined on
the date of original issuance of such Debt Security, of the principal
amount of such Debt Security or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent, determined on the date of original
issuance of such Debt Security, of the amount determined as provided in (1)
above.
12
<PAGE> 14
TITLE
Tiffany, the Trustee and any agent of Tiffany or the Trustee may treat the
registered owner of any Debt Security as the absolute owner thereof, whether or
not such Debt Security is overdue and notwithstanding any notice to the
contrary, for the purpose of making payment and for all other purposes.
REPLACEMENT OF DEBT SECURITIES
Any mutilated Debt Security will be replaced by us at the expense of the
holder upon surrender of such Debt Security to the Trustee. Debt Securities that
are destroyed, lost or stolen will be replaced by us at the expense of the
holder upon delivery to the Trustee of satisfactory evidence of the destruction,
loss or theft thereof. In the case of a destroyed, lost or stolen Debt Security,
an indemnity satisfactory to the Trustee and us may be required at the expense
of the holder of such Debt Security before issuance of a replacement Debt
Security.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
CONCERNING THE TRUSTEE
Any Trustee may resign or be removed with respect to one or more series of
Debt Securities and a successor Trustee may be appointed to act with respect to
such series. If two or more persons are acting as Trustee with respect to
different series of Debt Securities, each such Trustee will be a Trustee of a
trust under the Indenture separate and apart from the trust administered by any
other such Trustee. Any action described herein to be taken by the Trustee in
that circumstance may be taken by each such Trustee with respect to, and only
with respect to, the one or more series of Debt Securities for which it is
Trustee.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus separately or
together:
- through agents;
- to or through underwriters;
- through dealers;
- through a block trade in which the broker or dealer engaged to handle the
block trade will attempt to sell the securities as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction;
- directly to purchasers, through a specific bidding, auction or other
process; or
- through a combination of any of these methods of sale.
We may effect the distribution of the securities from time to time in one
or more transactions at a fixed price or prices, which may be changed from time
to time:
- at market prices prevailing at the times of sale;
- at prices related to such prevailing market prices; or
- at negotiated prices.
We will describe the method of distribution of the securities in the
prospectus supplement.
Agents designated by us from time to time may solicit offers to purchase
the securities. We will name any agent involved in the offer or sale of the
securities and set forth any commissions payable by us to an agent in the
prospectus supplement. Unless otherwise indicated in the prospectus supplement,
any agent
13
<PAGE> 15
will be acting on a best efforts basis for the period of its appointment. Any
agent may be deemed to be an "underwriter" of the securities as that term is
defined in the Securities Act.
If we use an underwriter or underwriters in the sale of securities, we will
execute an underwriting agreement with the underwriter or underwriters at the
time we reach an agreement for sale. We will set forth in the prospectus
supplement the names of the specific managing underwriter or underwriters, as
well as any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers. This compensation may be in the
form of discounts, concessions or commissions. Underwriters and others
participating in any offering of securities may engage in transactions that
stabilize, maintain or otherwise affect the price of securities. We will
describe any of these activities in the prospectus supplement.
If a dealer is used in the sale of the securities, we or an underwriter
will sell securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at the
time of resale. The prospectus supplement will set forth the name of the dealer
and the terms of the transactions.
We may directly solicit offers to purchase the securities, and we may sell
directly to institutional investors or others. These persons may be deemed to be
underwriters within the meaning of the Securities Act with respect to any resale
of the securities. The prospectus supplement will describe the terms of any
direct sales, including the terms of any bidding or auction process.
Agreements we enter into with agents, underwriters and dealers may entitle
them to indemnification by us against specified liabilities, including
liabilities under the Securities Act, or to contribution by us to payments they
may be required to make in respect of these liabilities. The prospectus
supplement will describe the terms and conditions of indemnification or
contribution.
No securities may be sold under this prospectus without delivery, in paper
format, in electronic format on the Internet, or both, of the applicable
prospectus supplement describing the method and terms of the offering.
LEGAL MATTERS
Certain legal matters with respect to the validity of the offered
securities will be passed upon for Tiffany by Gibson, Dunn & Crutcher LLP, New
York, New York. Charles K. Marquis, a Tiffany director, was a partner of Gibson,
Dunn & Crutcher LLP during 1998.
EXPERTS
The financial statements and financial statement schedule incorporated in
this prospectus by reference to the Annual Report on Form 10-K for the year
ended January 31, 1999 have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
14
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses payable by us in connection
with the offering of the securities being registered, other than discounts and
commissions (all of which are estimates other than the S.E.C. registration fee).
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 34,750
Printing expenses........................................... $ 30,000
Legal fees and expenses..................................... $ 50,000
Accounting fees and expenses................................ $ 50,000
Blue sky fees and expenses.................................. $ 5,000
Rating Agency fees.......................................... $150,000
Trustee's and Depositary's fees and expenses................ $ 10,000
Miscellaneous............................................... $ 5,250
--------
Total............................................. $335,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's Restated Certificate of Incorporation provides that a
director shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director except: (i) for any
breach of the director's duty of loyalty to the Company or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under Section 174 of the
Delaware General Corporation Law; or (iv) for any transaction from which the
director derived any improper personal benefit. Article VI of the Company's
By-laws provides that the Company shall indemnify each director, officer or
employee of the Company to the fullest extent provided by the laws of the State
of Delaware.
The Company has entered into an indemnity agreement (the "Indemnity
Agreement") with each director and executive officer of the Company. By its
terms, the Indemnity Agreement holds directors and officers harmless against
amounts that they become legally obligated to pay because of acts or omissions
that they commit or permit to occur while acting as agents of the Company. The
Indemnity Agreement specifically provides that the Company shall pay the costs
incurred by an indemnified party (the "Indemnitee") in connection with a
derivative action, including the cost of settling such a claim. Pursuant to
Section 2(b) of the Indemnity Agreement, however, the Company may not indemnify
an Indemnitee: (i) in respect of a claim based upon or attributable to the
Indemnitee gaining in fact any personal profit or advantage to which he is not
legally entitled; (ii) for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Securities Exchange Act of 1934; (iii) on account of the
Indemnitee's deliberately dishonest conduct; or (iv) for a violation of the
Delaware General Corporation Law pertaining to the improper payment of a
dividend or redemption of stock.
The Indemnity Agreement provides that litigation expenses shall be advanced
to the Indemnitee at his request provided that he undertakes to repay the amount
advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses. The disinterested members of the Board of
Directors, independent counsel or the stockholders may determine whether an
indemnification payment should be made in a particular instance. Should
indemnification be withheld, the Indemnitee is entitled to seek a final judicial
determination or an award in arbitration with respect to his right to
indemnification under the
II-1
<PAGE> 17
Indemnity Agreement. Should a court of competent jurisdiction determine that the
indemnification provided in the Indemnity Agreement is unavailable to the
Indemnitee in whole or in part, the Company shall contribute to the payment of
the Indemnitee's losses in an amount that is just and equitable, except losses
attributable to conduct on the part of the Indemnitee described in Section 2(b)
of the Indemnity Agreement, referred to above. The Indemnity Agreement provides
that it is not just and equitable for the Company to pay amounts in excess of:
(i) in a case where the Indemnitee is a director of the Company, but not an
officer of the Company, an amount equal to five times the amount of fees paid to
the Indemnitee for serving as a director during the 12 months preceding the
commencement of the subject proceeding; or (ii) in a case where the Indemnitee
is a director and an officer of the Company, the amount set forth in clause (i)
plus 25% of the aggregate cash compensation paid to the Indemnitee for service
in such office(s) during said 12 months; or (iii) in a case where the Indemnitee
is an officer of the Company, 25% of the aggregate cash compensation paid to the
Indemnitee for service in such office(s) during said 12 months.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
4.1 Description of the Company's Common Stock contained in the
Registration Statement filed with the SEC on Form S-1
(Registration No. 33-12818), as most recently amended on May
5, 1987, in the Prospectus for the Company's Common Stock
dated May 5, 1987, as supplemented by the Registration
Statement dated November 18, 1988, filed with the SEC on
Form 8-A, as most recently amended by Form 8-A/A dated
September 24, 1998 and filed on September 25, 1998.
4.2 Form of Indenture between the Registrant and
, as Trustee.
5.1 Opinion of Gibson, Dunn & Crutcher LLP
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (see page II-4 of this Registration
Statement)
25.1* Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of ,
as Trustee.
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in the post-effective amendment by those
paragraphs is contained in periodic reports filed by the
II-2
<PAGE> 18
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 post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
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 such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on July 12, 1999.
TIFFANY & CO.
By: /s/ MICHAEL J. KOWALSKI
------------------------------------
Michael J. Kowalski,
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: that each person whose signature appears
below constitutes and appoints James N. Fernandez and Patrick B. Dorsey his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ MICHAEL J. KOWALSKI President and Chief Executive July 12, 1999
- --------------------------------------------------- Officer, Director (Principal
Michael J. Kowalski Executive Officer)
/s/ JAMES N. FERNANDEZ Executive Vice President and Chief July 12, 1999
- --------------------------------------------------- Financial Officer (Principal
James N. Fernandez Financial Officer)
/s/ WARREN S. FELD Controller (Principal Accounting July 12, 1999
- --------------------------------------------------- Officer)
Warren S. Feld
/s/ WILLIAM R. CHANEY Chairman of the Board of Directors July 12, 1999
- ---------------------------------------------------
William R. Chaney
/s/ ROSE MARIE BRAVO Director July 12, 1999
- ---------------------------------------------------
Rose Marie Bravo
Director July , 1999
- ---------------------------------------------------
Samuel L. Hayes III
</TABLE>
II-4
<PAGE> 20
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ CHARLES K. MARQUIS Director July 12, 1999
- ---------------------------------------------------
Charles K. Marquis
/s/ JAMES E. QUINN Vice Chairman and Director July 12, 1999
- ---------------------------------------------------
James E. Quinn
/s/ WILLIAM A. SHUTZER Director July 12, 1999
- ---------------------------------------------------
William A. Shutzer
/s/ GERALDINE STUTZ Director July 12, 1999
- ---------------------------------------------------
Geraldine Stutz
</TABLE>
II-5
<PAGE> 21
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S> <C>
4.1 Description of the Company's Common Stock contained in the
Registration Statement filed with the SEC on Form S-1
(Registration No. 33-12818), as most recently amended on May
5, 1987, in the Prospectus for the Company's Common Stock
dated May 5, 1987, as supplemented by the Registration
Statement dated November 18, 1988, filed with the SEC on
Form 8-A, as most recently amended by Form 8-A/A dated
September 24, 1998 and filed on September 25, 1998.
4.2 Form of Indenture between the Registrant and
, as Trustee.
5.1 Opinion of Gibson, Dunn & Crutcher LLP
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (see page II-4 of this Registration
Statement)
25.1* Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of ,
as Trustee.
</TABLE>
- ---------------
* To be filed by amendment.
<PAGE> 1
EXHIBIT 4.2
TIFFANY & CO.
TO
____________________,
TRUSTEE
INDENTURE
REGARDING SENIOR SECURITIES
DATED AS OF ____________ __, ____
<PAGE> 2
Reconciliation and Tie Sheet between Trust Indenture
Act of 1939 and Indenture, dated as of __________ __, ____*
<TABLE>
<CAPTION>
Section of Act Section of Indenture
- -------------- --------------------
<S> <C>
310(a)(1), (2)............................................................ 5.08
310(a)(3), (4)............................................................ Inapplicable
310(a)(5)................................................................. 5.08
310(b).................................................................... **
310(c).................................................................... Inapplicable
311(a), (b)............................................................... **
311(c).................................................................... Inapplicable
312....................................................................... **
313(a).................................................................... **
313(b)(1)................................................................. Inapplicable
313(b)(2)................................................................. **
313(c), (d)............................................................... **
314(a).................................................................... **
314(b).................................................................... Inapplicable
314(c)(1) and (2)......................................................... 15.05
314(c)(3)................................................................. Inapplicable
314(d).................................................................... Inapplicable
314(e).................................................................... 15.05
314(f).................................................................... Inapplicable
315(a)(c) and (d)......................................................... 5.01
315(b).................................................................... 4.08
315(e).................................................................... 4.09
316(a)(1)................................................................. 4.01 and 4.07
316(a)(2)................................................................. Omitted
316(a) last sentence...................................................... 6.04
316(b).................................................................... 4.04
316(c).................................................................... 6.05
317(a).................................................................... 4.02
317(b).................................................................... 3.03(a)
318(a).................................................................... 15.07
</TABLE>
- ----------
* This Reconciliation and Tie-sheet is not a part of the Indenture.
** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939.
<PAGE> 3
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties ..................................................................................................... 1
Recitals .................................................................................................... 1
ARTICLE ONE DEFINITIONS .................................................................................... 1
SECTION 1.01. Definitions ................................................................................... 1
ARTICLE TWO THE SECURITIES AND SECURITY FORMS .............................................................. 8
SECTION 2.01. Amount Unlimited; Issuable in Series .......................................................... 8
SECTION 2.02. Form of Securities and of Trustee's Certificate of Authentication ............................. 11
SECTION 2.03. Securities in Global Form ..................................................................... 12
SECTION 2.04. Denomination, Authentication and Dating of Securities ......................................... 12
SECTION 2.05. Execution of Securities ....................................................................... 15
SECTION 2.06. Exchange and Registration of Transfer of Securities ........................................... 15
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities ............................................... 19
SECTION 2.08. Temporary Securities .......................................................................... 20
SECTION 2.09. Payment of Interest; Interest Rights .......................................................... 21
SECTION 2.10. Cancellation of Securities Paid, etc .......................................................... 22
ARTICLE THREE PARTICULAR COVENANTS OF THE COMPANY .......................................................... 22
SECTION 3.01. Payment of Principal and Interest ............................................................. 22
SECTION 3.02. Offices for Notices and Payments, etc ......................................................... 22
SECTION 3.03. Provisions as to Paying Agent ................................................................. 23
SECTION 3.04. Corporate Existence ........................................................................... 24
SECTION 3.05. Payment of Taxes and Other Claims ............................................................. 24
SECTION 3.06. Maintenance of Properties ..................................................................... 25
SECTION 3.07. Maintenance of Records ........................................................................ 25
SECTION 3.08. Statement as to Compliance .................................................................... 25
SECTION 3.09. Notice of Defaults ............................................................................ 26
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT ............................... 26
</TABLE>
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* This table of contents is not part of the Indenture.
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SECTION 4.01. Events of Default ............................................................................. 26
SECTION 4.02. Payment of Securities on Default; Suit Therefor ............................................... 28
SECTION 4.03. Application of Money Collected by Trustee ..................................................... 30
SECTION 4.04. Proceedings by Securityholders ................................................................ 31
SECTION 4.05. Proceedings by Trustee ........................................................................ 31
SECTION 4.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver .............................. 31
SECTION 4.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders ................ 32
SECTION 4.08. Notice of Defaults ............................................................................ 32
SECTION 4.09. Undertaking to Pay Costs ...................................................................... 33
ARTICLE FIVE CONCERNING THE TRUSTEE ........................................................................ 33
SECTION 5.01. Duties and Responsibilities of Trustee ........................................................ 33
SECTION 5.02. Reliance on Documents, Opinions, etc .......................................................... 34
SECTION 5.03. No Responsibility for Recitals, etc ........................................................... 35
SECTION 5.04. Trustee, Paying Agents or Registrar May Own Securities ........................................ 35
SECTION 5.05. Money to Be Held in Trust ..................................................................... 35
SECTION 5.06. Compensation and Expenses of Trustee .......................................................... 35
SECTION 5.07. Officers' Certificate as Evidence ............................................................. 36
SECTION 5.08. Eligibility of Trustee ........................................................................ 36
SECTION 5.09. Resignation or Removal of Trustee ............................................................. 36
SECTION 5.10. Acceptance by Successor Trustee ............................................................... 38
SECTION 5.11. Succession by Merger, etc ..................................................................... 39
ARTICLE SIX CONCERNING THE SECURITYHOLDERS ................................................................. 39
SECTION 6.01. Action by Securityholders ..................................................................... 39
SECTION 6.02. Proof of Execution by Securityholders ......................................................... 40
SECTION 6.03. Who Are Deemed Absolute Owners ................................................................ 40
SECTION 6.04. Company-Owned Securities Disregarded .......................................................... 41
SECTION 6.05. Revocation of Consents; Future Holders Bound .................................................. 41
SECTION 6.06. Determination of Outstanding Securities ....................................................... 41
ARTICLE SEVEN SECURITYHOLDERS' MEETINGS .................................................................... 42
SECTION 7.01. Purposes of Meetings .......................................................................... 42
SECTION 7.02. Call of Meetings by Trustee ................................................................... 43
SECTION 7.03. Call of Meetings by Company or Securityholders ................................................ 43
SECTION 7.04. Qualifications for Voting ..................................................................... 43
SECTION 7.05. Regulations ................................................................................... 43
SECTION 7.06. Quorum ........................................................................................ 44
SECTION 7.07. Voting ........................................................................................ 44
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SECTION 7.08. No Delay of Rights by Meeting ................................................................. 44
ARTICLE EIGHT SUPPLEMENTAL INDENTURES ...................................................................... 45
SECTION 8.01. Supplemental Indentures Without Consent of Securityholders .................................... 45
SECTION 8.02. Supplemental Indentures with Consent of Securityholders of a Series ........................... 46
SECTION 8.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures ........................ 47
SECTION 8.04. Notation on Securities ........................................................................ 47
SECTION 8.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee ...................... 47
ARTICLE NINE CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE ............................................. 48
SECTION 9.01. Company May Consolidate, etc., on Certain Terms ............................................... 48
SECTION 9.02. Successor Corporation Substituted ............................................................. 48
ARTICLE TEN REDEMPTION OF SECURITIES ....................................................................... 49
SECTION 10.01. Applicability of Article ..................................................................... 49
SECTION 10.02. Election to Redeem; Notice to Trustee ........................................................ 49
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed ............................................ 49
SECTION 10.04. Notice of Redemption ......................................................................... 50
SECTION 10.05. Deposit of Redemption Price .................................................................. 50
SECTION 10.06. Securities Payable on Redemption Date ........................................................ 51
SECTION 10.07. Registered Securities Redeemed in Part ....................................................... 51
ARTICLE ELEVEN SINKING FUNDS ............................................................................... 52
SECTION 11.01. Applicability of Article ..................................................................... 52
SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities ........................................ 52
SECTION 11.03. Redemption of Securities for Sinking Fund .................................................... 52
ARTICLE TWELVE REPAYMENT AT THE OPTION OF HOLDERS .......................................................... 53
SECTION 12.01. Terms Set Forth in the Securities ............................................................ 53
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE OF INDENTURE ................................................... 53
SECTION 13.01. Discharge of Indenture ....................................................................... 53
SECTION 13.02. Deposited Money to Be Held in Trust by Trustee ............................................... 54
SECTION 13.03. Paying Agent to Repay Money Held ............................................................. 54
SECTION 13.04. Return of Unclaimed Money .................................................................... 54
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SECTION 13.05. Discharge of Indenture as to Certain Series of Securities .................................... 54
SECTION 13.06. Repayment to Company of Deposits Made Pursuant to Section 13.05 .............................. 56
SECTION 13.07. Deposits Irrevocable ......................................................................... 57
SECTION 13.08. Reinstatement ................................................................................ 57
ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS ........................... 57
SECTION 14.01. Indenture and Securities Solely Corporate Obligations ........................................ 57
ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS ................................................................... 57
SECTION 15.01. Provisions Binding on Company's Successors ................................................... 57
SECTION 15.02. Official Acts by Successor Corporation ....................................................... 57
SECTION 15.03. Addresses for Notices, etc ................................................................... 58
SECTION 15.04. Governing Law ................................................................................ 58
SECTION 15.05. Evidence of Compliance with Conditions Precedent ............................................. 58
SECTION 15.06. Legal Holidays ............................................................................... 58
SECTION 15.07. Trust Indenture Act to Control ............................................................... 59
SECTION 15.08. No Security Interest Created ................................................................. 59
SECTION 15.09. Benefits of Indenture ........................................................................ 59
SECTION 15.10. Table of Contents, Headings, etc ............................................................. 59
SECTION 15.11. Execution in Counterparts .................................................................... 59
</TABLE>
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THIS INDENTURE, dated as of __________ __, ____, is executed
and delivered from TIFFANY & CO., a Delaware corporation (such corporation or,
subject to Article Nine, its successors and assigns, the "Company"), and
________________, a national banking association (such corporation or, subject
to Article Five, its successors and assigns as Trustee under this Indenture, the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
senior debentures, notes or other evidences of Indebtedness or warrants therefor
to be issued in one or more series (the "Securities"), as provided herein.
For and in consideration of the premises and the purchase of
the Securities by the holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section
1.01 (except to the extent the application of such definitions is expressly
limited to certain instances, and except as otherwise expressly provided in this
Indenture or unless the context otherwise requires) for all purposes of this
Indenture will have the respective meanings specified in this Section 1.01.
Except as otherwise expressly provided in this Indenture or unless the context
otherwise requires, all other terms used in this Indenture that are defined in
the Trust Indenture Act or that the Trust Indenture Act defines by reference to
the Securities Act of 1933 or by Commission rule under the Trust Indenture Act
will have the meanings assigned to such terms in the Trust Indenture Act, in
such rule thereunder or in such Securities Act as in force at the date of the
execution of this Indenture.
"Bearer Security" means any Security established pursuant to
Section 2.02 that is payable to bearer.
"Bearer Security Tax Certificate" or "Certificate of non-U.S.
Ownership", when used with respect to a Bearer Security, means a certificate
satisfying the requirements of Treasury Regulation Section
1.163-5(c)(2)(i)(D)(3), as that provision may be amended or redesignated from
time to time, which certificate shall be in a form approved by the Company.
"Board of Directors" means the Board of Directors of the
Company or, with respect to any matter, any committee of the Board of Directors
duly authorized to act for the Board of Directors with respect to such matter.
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<PAGE> 8
"Business Day", with respect to each series of Securities,
means any day other than a Saturday or Sunday that is neither a legal holiday
nor a day on which banking institutions are authorized or obligated by law or
regulation to close in either The City of New York or, with respect to
Registered Notes that will bear interest based on a specified percentage of
London interbank offered quotations ("LIBOR"), in London, England, or, in the
case of Bearer Securities, in any Place of Payment.
"Capital Leases" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the acquisition of an
asset and the incurrence of a liability in accordance with GAAP.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A., or its successor.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder from
time to time.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this Indenture the Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the corporation identified as the Company in
the first paragraph of this Indenture until a successor corporation shall
succeed to and be substituted for the Company pursuant to the provisions of
Article Nine, and thereafter shall mean such successor corporation.
"Company Order" means a written request or order signed in the
name of the Company by its Chairman of the Board, any Vice Chairman, its Chief
Executive Officer, its President, any Vice President and its Treasurer, any
Assistant Treasurer, its Secretary or any Assistant Secretary, and delivered to
the Trustee.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Subsidiaries" means at any date any Subsidiary
or other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements if such statements were
prepared as of such date.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section
2.09.
"Depositary", with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, means The
Depository Trust Company, New York, New York, or such other Person designated as
Depositary by the Company in the manner provided in Section 2.01, until a
successor Depositary shall have been appointed pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" means or includes each
Person who is
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<PAGE> 9
then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Global Securities of any such
series means the Depositary with respect to the Securities of that series.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor, as operator of the Euroclear System.
"Event of Default" means any event specified in Section 4.01,
continued for the period of time, if any, and after the giving of the notice, if
any, designated in Section 4.01.
"Foreign Government Obligations" has the meaning specified in
Section 13.05(b).
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America.
"Global Security" means a Security issued to evidence all or
part of a series of Securities in accordance with Section 2.03.
"Guaranty" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection), of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend, or other obligation of any other Person
in any manner, whether directly or indirectly, including (without limitation)
obligations, contingent or otherwise, by such Person:
(a) to purchase or pay such Indebtedness or obligation of any
other Person or any property constituting security therefore;
(b) to advance or supply funds (i) for the purchase or payment
of such Indebtedness or obligation of any other Person, or (ii) to
maintain any working capital or other balance sheet condition or any
income statement condition of any other Person or otherwise to advance
or make available funds for the purchase or payment of such
Indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation of payment thereof or against loss in respect thereof (in
whole or in part).
In any computation of the Indebtedness or other liabilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Immaterial Subsidiary" means, at any time, any Subsidiary of
the Company having consolidated assets at such time in an amount less than 5% of
Consolidated Net Worth at such time.
3
<PAGE> 10
"Immaterial Insolvent Subsidiary" has the meaning set forth in
Section 4.01.
"Indebtedness" with respect to any Person means, on any date
of determination, without duplication,
(a) its liabilities for the principal of,
premium, if any, and interest in respect of indebtedness of
such Person for borrowed money;
(b) its liabilities for the principal of,
premium, if any, and interest in respect of obligations of
such Person evidenced by bonds, debentures, notes or other
similar instruments;
(c) its redemption obligations in respect of
mandatorily redeemable Preferred Stock;
(d) its liabilities for the deferred
purchase price of property acquired by such Person (excluding
accounts payable arising in the ordinary course of business
but including all liabilities created or arising under any
conditional sale or other title retention agreement with
respect to any such property);
(e) all liabilities appearing on its balance
sheet in accordance with GAAP in respect of Capital Leases;
(f) all liabilities for borrowed money
secured by any Lien with respect to any property owned by such
Person (whether or not it has assumed or otherwise become
liable for such liabilities);
(g) all its liabilities in respect of
letters of credit or instruments serving a similar function
(including reimbursement obligations with respect thereto)
issued or accepted for its account by banks and other
financial institutions (whether or not representing
obligations for borrowed money);
(h) Swaps of such Person; and
(i) any Guaranty of such Person with respect
to liabilities of a type described in clauses (a) through
(h) hereof.
Indebtedness of any such Person shall include all obligations of such Person of
the character described in clauses (a) through (i) to the extent such Person
remains legally liable in respect thereof not withstanding that any such
obligation is deemed to be extinguished under GAAP.
"Indenture" means this instrument as originally executed or,
if amended or supplemented as provided in this Indenture, as so amended or
supplemented.
"interest", when used with respect to an Original Issue
Discount Security that by its terms bears interest only after Maturity, means
interest payable after Maturity.
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.
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets or properties
of the Company and its Subsidiaries taken as a whole, or (b) the ability of the
Company to perform its obligations under this Indenture and the Securities or
(c) the validity or enforceability of this Indenture or the Securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by the declaration of
acceleration, call for redemption, repayment at the option of the holder or
otherwise.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by the Chairman of the Board, any Vice
Chairman, the Chief Executive Officer, the President, any Vice President and by
the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary
of the Company. Except as otherwise provided in this Indenture, each such
certificate shall include the statements provided for in Section 15.05.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company, and who
shall be acceptable to the Trustee. Except as otherwise provided in this
Indenture, each such opinion shall include the statements provided for in
Section 15.05.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 4.01. The term "principal amount" or "aggregate principal amount", when
used with respect to Original Issue Discount Securities, has the meaning (or
meanings) specified in the manner contemplated by Section 2.01 for purposes of:
determining the amount due and payable in the event of an acceleration of
Maturity as provided in Section 4.01; and the redemption provisions in Article
Ten.
"Outstanding", when used with reference to Securities of any
series or the related coupons, subject to the provisions of Section 6.04, means,
as of any particular time, all Securities of such series or any related coupons
authenticated and delivered by the Trustee pursuant to this Indenture, except:
(a) such Securities and coupons theretofore canceled by
the Trustee or delivered to the Trustee for cancellation;
(b) such Securities and coupons, or portions thereof, for the
payment or redemption of which money in the necessary amount shall have
been deposited in trust
5
<PAGE> 12
with the Trustee or with any Paying Agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent), provided that if such
Securities are to be redeemed prior to the Maturity thereof, notice of
such redemption shall have been provided as specified in Article
Eleven, or provision satisfactory to the Trustee shall have been made
for mailing such notice; and
(c) such Securities or coupons in lieu of or in substitution
for which other Securities or coupons shall have been authenticated and
delivered pursuant to the terms of Section 2.07, except to the extent
that a bona fide holder in due course of any such Securities shall have
presented proof satisfactory to the Trustee that such holder is a bona
fide holder in due course of any such Securities or coupons.
"Paying Agent", when used with respect to Securities of any
series, means any Person authorized by the Company to pay the principal of and
any premium or interest on any Securities of that series on behalf of the
Company.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Place of Payment" has the meaning stated in Section 2.01(5).
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt that was
evidenced by such particular Security. For the purposes of this definition, any
Security authenticated and delivered under Section 2.07 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any class of capital stock of a
corporation that is preferred over any other class of capital stock of such
corporation as to the payment of any amount upon liquidation or dissolution of
such corporation.
"principal office of the Trustee" or any other similar term
means the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office, at the date of
this Indenture, is located at ____________.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security, in the form of
registered securities established pursuant to Section 2.02, that is registered
in the Security Register.
6
<PAGE> 13
"Regular Record Date", with respect to the interest payable on
any Interest Payment Date on the Securities of any series, means the date
specified for that purpose as contemplated by Section 2.01.
"Responsible Officer", when used with respect to the Trustee,
means the Chairman or Vice Chairman of its board of directors, the Chairman or
Vice Chairman of the executive committee of the board of directors, the
President, any Vice President, the Cashier, any Assistant Cashier, any senior
trust officer, any trust officer, any assistant trust officer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be the
above-named officers, or to whom any corporate trust matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the
recitals of this Indenture and means any Security or Securities, as the case may
be, authenticated and delivered pursuant to this Indenture. Whenever this
Indenture refers to any interest on or with respect to any Security that is
represented by a coupon, such reference to the Security also shall include
reference to a coupon.
"Security Register", when used with respect to a Registered
Security, has the meaning specified in Section 2.06(b).
"Securityholder", "holder of Securities", "holder" or other
similar term, when used with respect to a Registered Security, means any Person
in whose name at the time a particular Registered Security is registered on the
Security Register and, when used with respect to a Bearer Security or coupon,
the bearer thereof.
"Special Record Date" has the meaning specified in Section
2.09.
"Stated Maturity", when used with respect to any Security or
any payment of premium or any installment of interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such payment of
premium or such installment of interest is due and payable.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient
equity or voting interests to enable it or them (as a group) ordinarily, in the
absence of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership or joint
venture of which more than 50% of the interests in the profits or capital
thereof is owned by such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries (unless such partnership can and does
ordinarily take major business actions without the prior approval of such Person
or one or more of its Subsidiaries).
"Swaps" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this
7
<PAGE> 14
Indenture, the amount of the obligation under any Swap shall be the amount
determined in respect thereof as of the end of the then most recently ended
fiscal quarter of such Person, based on the assumptions that such Swap had
terminated at the end of such fiscal quarter, and in making such determination,
if any agreement relating to such Swap provides for the netting of amounts
payable by and to such person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount so determined.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
it was in force at the date of execution of this Indenture, except as provided
in Section 8.03.
"Trustee" means the Person identified as the Trustee in the
first paragraph of this Indenture until a successor shall succeed to the trusts
created by this Indenture pursuant to the provisions of Article Five, and
thereafter shall mean such successor.
"United States" means the United States of America (including
the District of Columbia) and its possessions.
"U.S. dollars," and "$" means the lawful currency from time to
time of the United States of America.
"U.S. Government Obligations" has the meaning specified in
Section 13.05(b).
"Vice President", when used with respect to the Company or the
Trustee, means any such officer whether or not designated by a number or a word
or words added before or after such title.
"Voting Stock" of a corporation or other entity means stock of
the class or classes having general voting power in an election of the board of
directors, managers or trustees of such corporation or other entity
(irrespective of whether, at the time, stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means, at any time, with respect to
any Person, any Subsidiary of such Person one hundred percent (100%) of all of
the equity interests (except directors' qualifying shares) and voting interests
of which are owned by any one or more of such Person and such Person's other
Wholly-Owned Subsidiaries.
ARTICLE TWO
THE SECURITIES AND SECURITY FORMS
SECTION 2.01. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. Securities may be issued in one or
more series.
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<PAGE> 15
The terms and conditions listed below, as applicable, of any
series of Securities shall be established either in an indenture supplemental
hereto or in or pursuant to a resolution of the Board of Directors:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of all
other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of,
other Securities of the series pursuant to Section 2.05, 2.06, 2.07,
8.04 or 10.07) and the percentage of such principal amount at which
such Securities may be issued;
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates (which may be fixed or
variable) at which the Securities of the series shall bear interest, if
any, or the formula by which interest shall be calculated by the
Company or an agent designated for such purpose, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the
interest payable on any Registered Security on any Interest Payment
Date;
(5) the place or places, if any, in addition to those
specified herein, where the principal of and any premium or interest on
Securities of the series shall be payable (the "Place of Payment"), any
Registered Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange,
where Securities of that Series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and where
notices and demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served and where notices to
holders pursuant to this Indenture will be published;
(6) the price or prices at which, the period or
periods within which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of
the Company, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a holder thereof and the
price or prices at which, the period or periods within which and the
other terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation, which in the case of Securities of any series that are
repayable at the option of a holder thereof shall be set forth in the
form of such Security;
(8) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities or both, whether
Securities of the series are to be issuable with or without coupons or
both and, in the case of Bearer Securities, the date as of which
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<PAGE> 16
such Bearer Securities shall be dated if other than the date of
original issuance of the first Security of such series of like tenor
and term to be issued;
(9) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary (if other than The Depository Trust Company)
for such Global Security or Securities and whether such global form
shall be permanent or temporary;
(10) if Securities of the series are to be issuable initially
in the form of one or more temporary Global Securities, the
circumstances under and the manner in which such temporary Global
Securities can be exchanged for definitive Securities of the series and
whether such definitive Securities will be Registered Securities,
Bearer Securities or both and will be in global form;
(11) any additional covenants applicable to such Securities;
(12) the denominations in which Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer
Securities of such series, if any, shall be issuable if other than the
denomination of $5,000;
(13) if other than the principal amount thereof, the portion
of the principal amount of such Securities that will be payable upon
declaration of acceleration of the maturity thereof;
(14) the currency or currency unit of payment of principal of
and premium, if any, and interest on such Securities, and any index
used to determine the amount of principal of or premium, if any, and
interest on such Securities;
(15) any Event of Default with respect to the Securities of
such series, if not set forth herein or if different from those set
forth herein;
(16) the form of Securities of the series;
(17) whether the Securities will be convertible into or
exchangeable for any securities of any Person (including the Company)
and the applicable terms and conditions of conversion or exchange;
(18) the Person or Persons who shall be Security registrar for
the Securities of such series if other than as provided for in this
Indenture, and the place or places where the Security Register for such
series shall be maintained and the Person or Persons who will be the
initial Paying Agent or Agents, if other than as provided for in this
Indenture;
(19) if warrants for Securities of any series are to be
issued, the form in which the warrants shall be issued, the
circumstances under and the manner in which the warrants may be
exercised, any obligation of the Company concerning any Securities
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<PAGE> 17
underlying the warrants and any other terms or conditions regarding the
warrants and any Securities underlying the warrants; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any series and the coupons appertaining to
Bearer Securities of such series, if any, issued under this Indenture in all
respects shall be equally and ratably entitled to the benefits hereof with
respect to such series without preference, priority or distinction on account of
actual time or times of authentication and delivery or Maturity of the
Securities of such series. All Securities of the same series and the coupons
appertaining to Bearer Securities of such series, if any, shall be substantially
identical except as to denomination and except as may otherwise be provided
either in an indenture supplemental hereto or a resolution of the Board of
Directors.
SECTION 2.02. Form of Securities and of Trustee's Certificate
of Authentication. The Registered Securities, if any, and the Bearer Securities
and related coupons, if any, of each series and the certificates of
authentication on the Securities shall be in substantially the form as shall be
established as provided in Section 2.01 with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may be determined consistently
herewith by the officers executing such Securities or coupons, as evidenced by
their execution of the Securities or coupons. If the form of Securities of any
series or coupons (including any Global Security) is established by action taken
pursuant to a resolution of the Board of Directors, a copy of an appropriate
record of such action shall be certified by the Secretary or any Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect as of the date of such certificate, and shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 2.04(b) or the authentication and delivery of such
Securities.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
The form of Trustee's certificate of authentication for all
Securities shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the
within-mentioned Indenture.
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<PAGE> 18
---------------------,
as Trustee
By
----------------------
Authorized Signatory
SECTION 2.03. Securities in Global Form. (a) If Securities of
or within a series are issuable in whole or in part in global form, as specified
in the manner contemplated by Section 2.01, then, notwithstanding the provisions
of clause (12) of Section 2.01 or Section 2.04, such Global Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby from time to time
may be increased or reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Global Security or in the Company Order to be delivered to the Trustee pursuant
to Section 2.04(b).
(b) The provisions of the last sentence of Section 2.05(b)
shall apply to any Securities represented by a Global Security if such
Securities were never issued and sold by the Company (whether because of failure
of settlement or otherwise) and the Company delivers to the Trustee the Global
Security together with written instructions with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 2.05(b), notwithstanding
the absence of delivery of such Securities as contemplated thereby.
(c) Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form.
SECTION 2.04. Denomination, Authentication and Dating of
Securities. (a) Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Security for such series
approved or established pursuant to Section 2.02. In the absence of any
specification, as provided in Section 2.01, with respect to the Securities of
any series, the Registered Securities of such series, if any, shall be issuable
in denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, if any, shall be issuable in the denomination of
$5,000. Each Registered Security shall be dated as of the date of its
authentication. Each Bearer Security shall be dated as of the date specified in
the manner contemplated by Section 2.01.
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication. Except as otherwise
provided in this Article Two, the Trustee thereupon shall authenticate and
deliver such Securities in accordance with a Company Order; provided, however,
that in connection with its original issuance a Bearer Security may be delivered
only outside the United States and, except in the case of a temporary Global
Security,
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<PAGE> 19
only if the Trustee, the Company or its agent shall have received from the
Person entitled to receive the Bearer Security a Bearer Security Tax Certificate
and only if the Company and the Trustee have no reason to know that such
certificate is false.
(c) To the extent authorized in or pursuant to a resolution of
the Board of Directors or established in an indenture supplemental hereto, such
Company Order may be electronically transmitted and may provide instructions as
to registration of holders, principal amounts, rates of interest, Stated
Maturities and other matters contemplated by such resolution of the Board of
Directors or supplemental indenture to be so instructed in respect thereof.
(d) In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and, subject to Section 5.01, shall be
fully protected in relying upon:
(i) a copy of the resolution or resolutions of the
Board of Directors in or pursuant to which the terms and form of the
Securities were established, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect as of the date of such
certificate;
(ii) an executed supplemental indenture, if any;
(iii) an Officers' Certificate delivered in
accordance with Section 15.05; and
(iv) an Opinion of Counsel to the effect that:
(A) the form of such Securities and coupons,
if any, has been established by a supplemental indenture or by
or pursuant to a resolution of the Board of Directors in
accordance with Sections 2.01 and 2.02 and in conformity with
the provisions of this Indenture;
(B) the terms of such Securities and
coupons, if any, have been established in accordance with
Section 2.01 and in conformity with the other provisions of
this Indenture;
(C) such Securities, when authenticated and
delivered by the Trustee and issued (with coupons attached, if
applicable) by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization
and moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(D) all conditions precedent, if any,
provided for in this Indenture have been complied with; and
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<PAGE> 20
(E) the execution and delivery by the
Company of such Securities and coupons, if any, do not
conflict with any law, administrative regulation or court
decree applicable to the Company.
(e) If the Company shall establish pursuant to Section 2.01
that the Securities of a series are to be issued in whole or in part in the form
of one or more Global Securities, then the Company shall execute and the
Trustee, in accordance with this Section 2.04 and the Company Order with respect
to such series, shall authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instruction.
(f) The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section 2.04 if the Trustee
in good faith determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors or trustees or vice presidents shall determine
that such action would expose the Trustee to personal liability to existing
holders.
(g) Notwithstanding any contrary provision herein, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary for the Company to deliver to the Trustee a Company Order,
Officers' Certificate, resolution of the Board of Directors, supplemental
indenture or Opinion of Counsel otherwise required pursuant to Section 2.04(b)
or Section 2.04(d) at or prior to the time of authentication of each Security of
such series if such documents are delivered to the Trustee or its agent at or
prior to the authentication upon original issuance of the first Security of such
series to be issued. In such event, any subsequent request by the Company to the
Trustee to authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as of the date of
such request, the statements made in the Officers' Certificate or other
certificates delivered pursuant to Section 2.04(d) are true and correct as if
made on such date. A Company Order, Officers' Certificate, resolution of the
Board of Directors or supplemental indenture delivered by the Company to the
Trustee in the circumstances set forth in this Section 2.04(g) may provide that
Securities that are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time in the aggregate
principal amount established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic, electronic or written order of persons designated in such
Company Order, supplemental indenture or resolution of the Board of Directors
(any such telephonic or electronic instructions to be promptly confirmed in
writing by such persons) and that such persons are authorized to determine,
consistent with such Company Order, supplemental indenture or resolution of the
Board of Directors, such terms and conditions of said Securities as are
specified in such Company Order, supplemental indenture or resolution of the
Board of Directors.
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<PAGE> 21
(h) Each Depositary designated pursuant to clause (9) of
Section 2.01 for a Global Security in registered form, at the time of its
designation and at all times while it serves as Depositary, shall be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.05. Execution of Securities. (a) The Securities and
the related coupons shall be signed in the name and on behalf of the Company by
the manual or facsimile signature of its Chairman of the Board, its Chief
Executive Officer or its President or, in lieu thereof, of any Vice President or
its Treasurer and attested by its Secretary or any Assistant Secretary, under
its corporate seal (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise). For the purpose of any such signature or
attestation, the Company may adopt and use the facsimile signature of any person
who has been or is or shall be such officer.
(b) No Security or appurtenant coupon shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose unless such
security bears thereon a certificate of authentication substantially in the form
set forth in Section 2.02, manually executed by an authorized signatory of the
Trustee. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered under this Indenture. Except as permitted by
Section 2.07, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled. Notwithstanding the foregoing, if any Security or portions thereof
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company (whether because of failure of settlement or otherwise), and
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement stating that such
Security or portion thereof has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
(c) In case any officer of the Company whose manual or
facsimile signature appears on any of the Securities or coupons shall cease to
be such officer before the Securities or coupons so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Securities or coupons nevertheless may be authenticated and delivered or
disposed of as though the person whose manual or facsimile signature appears on
such Securities or coupons had not ceased to be such officer of the Company; and
any Security or coupon may bear the manual or facsimile signature on behalf of
the Company by such persons as, at the actual date of the execution of such
Security or coupon, shall be the proper officers of the Company, although at the
date of the execution of this Indenture any such person was not such an officer.
SECTION 2.06. Exchange and Registration of Transfer of
Securities. (a) Registered Securities of any series may be exchanged for a like
aggregate principal amount of Registered Securities of other authorized
denominations and of like tenor and terms of the same series. Registered
Securities to be exchanged shall be surrendered at the office or agency to be
maintained by the Company pursuant to Section 3.02 in each Place of Payment for
such series of Registered Securities, and the Company shall execute and cause to
be registered, and the Trustee
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<PAGE> 22
shall authenticate and deliver in exchange therefor, the Registered Security or
Securities which the Securityholder making the exchange shall be entitled to
receive.
(b) For each series of Registered Securities, the Company
shall cause to be kept in at least one such office or agency a Security register
(the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for registration of Registered
Securities and registration of transfer of Registered Securities as provided in
this Article Two. Each such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times such Security Registers shall be open for
inspection by the Trustee. Upon due presentment for registration of transfer of
any Registered Security of any series at any such office or agency, the Company
shall execute and register and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Securities of
the same series and of like tenor and terms for an equal aggregate principal
amount. Unless otherwise provided (pursuant to Section 2.01 or otherwise), the
Company initially appoints the Trustee, at the principal office of the Trustee,
as a Security registrar for each series of Registered Securities.
(c) All Registered Securities presented for registration of
transfer or for exchange or payment, if so required by the Company or the
Trustee, shall be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee duly
executed by, the holder or his attorney duly authorized in writing.
(d) To the extent specified in the manner provided by Section
2.01, Registered Securities or Bearer Securities of any series may be issued in
exchange for Bearer Securities (except as otherwise specified in the manner
contemplated by Section 2.01 with respect to a Bearer Security in global form)
of the same series, of any authorized denomination and of like tenor and terms
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any office or agency specified in the manner provided by Section
2.01, with all unmatured coupons and all unpaid matured coupons thereto
appertaining. If the holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or unpaid matured coupon or coupons, such exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the amount
represented by such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to hold
harmless each of them and any Paying Agent. If thereafter the holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 3.02, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the holder making the exchange is entitled to
receive.
(e) If at any time the Depositary for the Global Securities of
a series notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of
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<PAGE> 23
such series or if at any time the Depositary for the Registered Securities of
such series shall no longer be eligible under Section 2.03 because it no longer
is a clearing agency registered under the Securities Exchange Act of 1934 and
any other applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to the Global Securities of such series. If a
successor Depositary for the Global Securities of such series is not appointed
by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 2.01(9)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
(f) The Company at any time and in its sole discretion may
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(g) If specified by the Company pursuant to Section 2.01 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver:
(i) to each Person specified by such Depositary a new
Security or new Securities of the same series, of like tenor and terms
and of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security of like
tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to holders thereof.
(h) In any exchange provided for in Section 2.06(e), Section
2.06(f) or Section 2.06(g), the Company will execute and the Trustee will
authenticate and deliver Securities (i) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (ii) in definitive bearer form in authorized
denominations, with unmatured coupons attached, if the Securities of such series
are issuable as Bearer Securities or (iii) as either Registered or Bearer
Securities, if the Securities of such series are issuable in either form;
provided, however, that (A) no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security unless the Company or its agent shall
have received from the person
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<PAGE> 24
entitled to receive the definitive Bearer Security a Bearer Security Tax
Certificate, (B) delivery of a Bearer Security shall occur only outside the
United States and (C) no definitive Bearer Security will be issued if the
Company or the Trustee has reason to know that such certificate is false.
(i) Upon the exchange of all of a Global Security for
Securities in certificated form, such Global Security shall be canceled by the
Trustee. The exchange of any portion of a Global Security for Securities in
certificated form shall be subject to Section 2.03(a). Registered Securities
issued in exchange for all or part of a Global Security shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Registered Securities to the persons in whose names such Securities are so
registered. The Trustee shall deliver Bearer Securities issued in exchange for
all or part of a Global Security to the persons, and in such authorized
denominations, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee; provided, however, that (A) no definitive Bearer Security
shall be delivered in exchange for all or part of a temporary Global Security
unless the Company or its agent shall have received from the person entitled to
receive the definitive Bearer Security a Bearer Security Tax Certificate, (B)
delivery of a Bearer Security shall occur only outside the United States and (C)
no definitive Bearer Security will be issued if the Company or the Trustee has
reason to know that any such certificate is false.
(j) No service charge shall be made for any exchange or
registration of transfer of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such exchange or registration of transfer.
(k) The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any particular series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of such series selected for redemption under
Section 10.03 and ending at the close of business on the day of such mailing,
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except the unredeemed portion of any
Registered Security being redeemed in part or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series, provided that such
Registered Security shall be surrendered immediately for redemption with written
instruction for payment consistent with the provisions of this Indenture.
(l) Notwithstanding anything herein to the contrary: the
exchange of Bearer Securities for Registered Securities shall be subject to
applicable laws and regulations in effect at the time of exchange; and neither
the Company nor the Trustee or any Security registrar shall exchange any Bearer
Securities into Registered Securities if it has received an Opinion of Counsel
that as a result of such exchanges the Company could suffer adverse consequences
under the United States Federal income tax laws and regulations then in effect
and the Company has delivered to the Trustee a Company Order directing the
Trustee not to make such exchanges thereafter unless and until the Trustee
receives a subsequent Company Order to the contrary. The Company shall deliver
copies of such Company Order to the Security registrar.
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<PAGE> 25
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
(a) In case any temporary or definitive Security of any series or any related
coupon shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and upon its request and in the absence of notice to
the Company and the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Trustee shall authenticate and deliver a new Security
of the same series or related coupon, of equal aggregate principal amount and of
like tenor and terms bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security or coupon, or in lieu of
and in substitution for the Security or coupon so destroyed, lost or stolen. In
every case the applicant for a substituted Security or coupon shall furnish to
the Company and to the Trustee such security or indemnity as may be required by
them to hold each of them harmless, and, in every case of destruction, loss or
theft, the applicant also shall furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
security or coupon and of the ownership of such Security or coupon.
(b) The Trustee may authenticate any such substitute Security
and deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substitute Security or coupon, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Security or coupon which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company,
instead of issuing a substitute Security or coupon, may pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to hold each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and the Trustee of the destruction, loss or
theft of such Security or coupon and of the ownership of such Security or
coupon.
(c) Every substitute Security or coupon issued pursuant to the
provisions of this Section 2.07 by virtue of the fact that any Security or
coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or coupon shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
or coupons of the relevant series duly issued under this Indenture. All
Securities or coupons shall be held and owned by the holders upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
(d) Notwithstanding the foregoing, the payment of principal of
and any premium and interest on Bearer Securities, except as otherwise provided
in Section 3.02, shall be payable only at an office or an agency located outside
of the United States, and, with respect to any coupons, interest represented
thereby shall be payable only upon presentation and surrender of such coupons.
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<PAGE> 26
SECTION 2.08. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may execute and
the Trustee shall authenticate and deliver temporary Securities (printed or
lithographed). Temporary Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Securities of such
series (and of like tenor and terms) in lieu of which they are issued in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
In the case of Securities of any series issuable as Bearer Securities, such
temporary Securities may be in global form, representing all or any part of the
Outstanding Securities of such series.
(b) Unless otherwise provided pursuant to Section 2.01:
(i) Except in the case of temporary Securities in global
form, every such temporary Security shall be authenticated by the
Trustee in substantially the same manner, and with the same effect, as
the definitive Securities. Without unreasonable delay the Company will
execute and deliver to the Trustee definitive Securities of such series
and thereupon any or all temporary Securities of such series
(accompanied, if applicable, by all unmatured coupons and all unpaid
matured coupons appertaining thereto) may be surrendered in exchange
therefor at the principal office of the Trustee, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such
series of authorized denominations. Such exchange shall be made at the
Company's expense and without any charge to the holder. Until so
exchanged, the temporary Securities of any series in all respects shall
be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered under this
Indenture. Notwithstanding the foregoing, no Bearer Security shall be
delivered in exchange for a Registered Security, and a Bearer Security
shall be delivered in exchange for a Bearer Security only in compliance
with the conditions set forth in Section 2.06.
(ii) If Securities of any series are issued in temporary
global form, any such temporary Global Security, unless otherwise
provided pursuant to Section 2.01, shall be delivered to the Depositary
for the benefit of Euroclear and CEDEL S.A. for credit to the
respective accounts of the beneficial owners of such Securities or to
such other accounts as they may direct.
(iii) Any such temporary Global Security shall be
exchangeable, on the terms and in the manner set forth therein, in
whole or in part, for an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like
tenor and terms as the portions of such temporary Global Security to be
exchanged. Any definitive Bearer Security shall be delivered in
exchange for a portion of a temporary Global Security only upon receipt
by the Trustee from the Person entitled to receive such definitive
Bearer Security of a Bearer Security Tax Certificate.
(iv) Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall be entitled in all respects to
the same benefits under this
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Indenture as definitive Securities of the same series and of like tenor
and terms authenticated and delivered hereunder, except that any
interest payable with respect to a temporary Global Security will be
paid as specified therein.
SECTION 2.09. Payment of Interest; Interest Rights. Interest
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the holder of
such coupon when due in accordance with the provisions of this Indenture.
Payment of interest on any Registered Security may be made as provided in
Section 3.02. Except as otherwise provided in the terms of any particular series
pursuant to Section 2.01, interest will be calculated on the basis of a year
consisting of twelve 30-day months.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date ("Defaulted
Interest") forthwith shall cease to be payable to the holder on the relevant
Regular Record Date by virtue of having been such holder; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered at the close of
business on a special record date (a "Special Record Date") for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as provided in this clause (i). Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor fewer than ten
days prior to the date of the proposed payment and not fewer than ten
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee promptly shall notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class, postage
prepaid, to each holder at his address as it appears in the Security
Register, not fewer than ten days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having
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been given as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on any such Security in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Securities of that series may be listed, and upon such notice as
may be required by any such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause
(ii), such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 2.09, each
Security of any series delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security of such series
shall carry the rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.
Subject to the limitations set forth in Section 3.02, the
holder of any coupon appertaining to a Bearer Security shall be entitled to
receive the interest payable on such coupon upon presentation and surrender of
such coupon on or after the Interest Payment Date of such coupon at an office or
agency maintained for such purpose pursuant to Section 3.02.
SECTION 2.10. Cancellation of Securities Paid, etc. All
Securities and coupons surrendered for the purpose of payment, exchange or
registration of transfer, if surrendered to the Company or any Paying Agent or
any Security registrar, shall be delivered to the Trustee and promptly canceled
by the Trustee or, if surrendered to the Trustee, promptly shall be canceled by
it; and no Securities or coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee may
destroy canceled Securities or coupons and will deliver a certificate of such
destruction to the Company.
ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal and Interest. The Company
duly and punctually will pay or cause to be paid the principal of and any
premium and interest on the Securities of each series at the places, at the
respective times and in the manner provided in this Indenture and in the
Securities. Any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 3.02. Offices for Notices and Payments, etc. So long
as any Securities of a series remain Outstanding, the Company will maintain in
each Place of Payment for such series of Securities an office or agency where
the Securities of that series (but, except as otherwise provided below, unless
such Place of Payment is located outside the United States, not Bearer
Securities) may be presented for payment, for registration of transfer and for
exchange as
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provided in this Indenture, where Securities of that Series that are
convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be
served. If Securities of a series are issuable as Bearer Securities,
the Company will maintain, subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for such
series that is located outside the United States where Securities of
such series and the related coupons may be presented for payment. The
Company will give to the Trustee prompt written notice of the location
of each such office or agency and of any change of location thereof. In
case the Company shall fail to maintain any such office or agency or
shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may
be served at the principal office of the Trustee, and the Company
hereby initially appoints the Trustee its agent to receive all such
presentations and demands, except that Bearer Securities of that series
and the related coupons may be presented for payment at the place
specified for that purpose pursuant to Section 2.01(5). Unless
otherwise provided pursuant to Section 2.01, the Company hereby
initially designates as the Place of Payment for each series of
Securities (other than Bearer Securities of that series and the related
coupons) the Borough of Manhattan, The City of New York, New York and
appoints the Trustee, at the principal office of the Trustee, as Paying
Agent in such city.
No payment of principal of or any premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that payment of principal of and any premium and interest on
any Bearer Security may be made at an office or agency of, and designated by,
the Company located in the United States if (but only if) payment of the full
amount of such principal, premium or interest at all offices outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 2.01 with respect to any series of Securities, at the
option of the holder of any Bearer Security or related coupon, payment may be
made by mailing a check to an address outside the United States or by transfer
to an account maintained by the payee with a bank located outside the United
States.
The Company also from time to time may designate one or more
offices or agencies (in or outside of such Place of Payment) where the
Securities of one or more series and any appurtenant coupons (subject to the
preceding paragraph) may be presented or surrendered for any and all such
purposes, and from time to time may rescind such designations. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such office or agency.
SECTION 3.03. Provisions as to Paying Agent. (a) The Company,
with respect to the Securities of each series, prior to each due date of
principal of or any premium or interest on such Securities, will deposit with
the Paying Agent for such Securities an amount sufficient to pay the principal,
premium or interest so becoming due, such amount to be held in trust for the
benefit of the persons entitled to such principal, premium or interest. If the
Company shall appoint a Paying Agent other than the Trustee with respect to the
Securities of any series, the Company will notify the Trustee of its making, or
failure to make, any such payment; and the Company also shall cause any such
Paying Agent to execute and deliver to the Trustee an
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instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 3.03, as follows:
(1) that it will hold all amounts held by it as such
agent for the payment of the principal of or any premium or interest on
such Securities (whether such amounts have been paid to it by the
Company or by any other obligor on such Securities) in trust for the
benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on such Securities) to
make any payment of the principal of or any premium or interest on such
Securities when the same shall be due and payable; and
(3) that it forthwith will pay to the Trustee, at any
time during the continuance of an Event of Default, upon the written
request of the Trustee, all amounts so held by it as such agent.
(b) If the Company shall act as its own Paying Agent with
respect to the Securities of any series, on or before each due date of the
principal of or any premium or interest on the Securities of such series, it
will set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto an amount sufficient to pay such principal, premium or interest
so becoming due and will notify the Trustee of any failure to take such action
and of any failure by the Company (or by any other obligor under such
Securities) to make any payment of the principal of or any premium or interest
on such Securities when the same shall become due and payable.
(c) Notwithstanding anything in this Section 3.03 to the
contrary, the Company, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture or for any other reason, may pay or by Company
Order direct any Paying Agent to pay to the Trustee all amounts held in trust by
the Company or any Paying Agent under this Indenture, such amounts to be held by
the Trustee upon the trusts contained in this Indenture.
(d) Notwithstanding anything in this Section 3.03 to the
contrary, the agreement to hold amounts in trust as provided in this Section
3.03 is subject to Section 13.03 and Section 13.04.
SECTION 3.04. Corporate Existence. The Company will at all
times preserve and keep in full force and effect its corporate existence.
Subject to Article 9, the Company will at all times preserve and keep in full
force and effect the corporate existence of each of its Subsidiaries (unless
merged into the Company or any Subsidiary in accordance with Article 9) and all
rights and franchises of the Company and its Subsidiaries unless, in the good
faith judgment of the Company, the termination of or failure to preserve and
keep in full force and effect such corporate existence, right or franchise could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 3.05. Payment of Taxes and Other Claims. The Company
will and will cause each of its Subsidiaries to file all income and franchise
tax returns required to be filed in any
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jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and payable and before they
have become delinquent and all claims for which sums have become due and payable
that have or might become a Lien on properties or assets of the Company or any
of its Subsidiaries, provided that neither the Company nor any of its
Subsidiaries need pay any such tax or assessment or claims if (i) the amount,
applicability or validity thereof is contested by the Company or such Subsidiary
on a timely basis in good faith and in appropriate proceedings, and the Company
or a Subsidiary has established adequate reserves therefor in accordance with
GAAP on the books of the Company or such Subsidiary or (ii) the nonpayment of
all such taxes and assessments in the aggregate would not reasonably be expected
to have a Material Adverse Effect.
SECTION 3.06. Maintenance of Properties. The Company will and
will cause each of its Subsidiaries to maintain and keep, or cause to be
maintained and kept, its property in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried on in
connection therewith may be properly conducted at all times, provided that this
Section shall not prevent the Company or any of its Subsidiaries from
discontinuing the operation and the maintenance of any of its property if such
discontinuance is desirable in the conduct of its business and the Company has
concluded that such discontinuance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 3.07. Maintenance of Records. The Company will and
will cause each of its Subsidiaries to maintain proper books of records and
accounts in accordance with normal business practice in which full and
appropriate entries shall be made of all dealings or transactions in relation to
their respective businesses and activities.
SECTION 3.08. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each calendar year
commencing with the first calendar year following the issuance of Securities of
any series under this Indenture, a written certificate of the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, covering the period from the date of issuance of such
Securities to the end of the calendar year in which such Securities were issued,
in the case of the first such certificate, and covering the preceding calendar
year, in the case of each subsequent certificate, stating, as to each signer of
such certificate, that:
(1) a review of the activities of the Company and
each of its Subsidiaries during the year and of performance under this
Indenture has been made under his supervision; and
(2) to the best of his knowledge, based on such
review, the Company and each of its Subsidiaries has fulfilled all its
conditions and covenants under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any
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such condition or covenant, specifying each such default known to him
and the nature and status of such default.
SECTION 3.09. Notice of Defaults. The Company will deliver to
the Trustee within five days after the occurrence thereof written notice of any
event which with the giving of notice or the lapse of time or both would be an
Event of Default under Section 4.01.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.01. Events of Default. "Event of Default", when used
with respect to Securities of any series, means each of the following events
unless it is either inapplicable to a particular series or is specifically
deleted or modified in the supplemental indenture or resolution of the Board of
Directors under which such series of Securities is issued or in the form of
Security for such series:
(a) default in the payment of any installment of interest upon
any of the Securities of that series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days;
(b) default in the payment of the principal of or any premium
on any of the Securities of that series as and when the same shall
become due and payable at their Stated Maturity, upon redemption, by
declaration or otherwise;
(c) default in the payment of any sinking fund installment or
analogous obligation as and when the same shall become due and payable
by the terms of the Securities of that series;
(d) the Company or any of its Subsidiaries defaults (as
principal or as guarantor or other surety) (i) in the payment of any
principal of or premium or interest on any other Indebtedness of the
Company or any of its Subsidiaries, or the obligation to repurchase or
acquire any other Indebtedness of the Company or any of its
Subsidiaries, that is outstanding in an aggregate principal amount of
at least $_________ beyond any period of grace provided with respect
thereto, or (ii) in the performance of or compliance with any term of
any evidence of any other Indebtedness of the Company or any of its
Subsidiaries in an aggregate outstanding principal amount at least
$_________ or of any mortgage, indenture or other agreement relating
thereto or any other condition exists, and as a consequence of such
default or condition such other Indebtedness has become, or has been
declared (or one or more Persons are entitled to declare such
Indebtedness to be), due and payable before its stated maturity or
before its regularly scheduled dates of payment;
(e) a final judgment or judgments or order or orders for the
payment of money in excess of $_________ shall be entered against the
Company or one or more
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Subsidiaries and within 60 days after entry thereof such judgment or
judgments or order or orders shall not have been discharged or the
execution thereof stayed pending appeal or within 60 days after the
expiration of any such stay such judgment or judgments or order or
orders shall not have been discharged;
(f) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Securities of such series or in this Indenture (other
than a covenant or agreement a default in the performance of which or
the breach of which specifically is provided for elsewhere in this
Section 4.01 or which expressly has been included in this Indenture
solely for the benefit of one or more series of Securities other than
such series), and continuance of such failure for a period of 30 days
after the date on which written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the
Trustee, or to the Company and the Trustee by the holders of at least
25% in aggregate principal amount of the Securities of such series at
the time Outstanding;
(g) the Company or a Subsidiary (other than any Immaterial
Subsidiary or Immaterial Subsidiaries which, in the aggregate, comprise
less than 5% of the Consolidated Net Worth of the Company (such
Immaterial Subsidiaries being "Immaterial Insolvent Subsidiaries")) (i)
is generally not paying, or admits in writing its inability to pay, its
debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors, (iv)
consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to
be liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or a Subsidiary (other than any Immaterial Insolvent Subsidiaries), a
custodian, receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its property,
or constituting an order for relief or approving a petition for relief
or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of
any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any of its Subsidiaries (other than
Immaterial Insolvent Subsidiaries), or any such petition shall be filed
against the Borrower or any of its Subsidiaries (other than any
Immaterial Insolvent Subsidiaries) and such petition shall not be
dismissed within 60 days.
If an Event of Default with respect to the Securities of any
series at the time Outstanding occurs and is continuing, then and in each such
case, unless the principal of all the Securities of such series already shall
have become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Company (and to the Trustee if given by
Securityholders),
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may declare the principal amount of all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable. This provision, however, is subject to the
condition that, at any time after such a declaration of acceleration, and before
any judgment or decree for the payment of the money due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Company and to the Trustee, may waive all defaults and rescind and
annul such declaration and its consequences, if:
(1) the Company shall pay or shall deposit with the
Trustee an amount sufficient to pay:
(A) all matured installments of interest on
all the Securities of that series and the principal of and any
premium on any and all Securities of that series that shall
have become due otherwise than by acceleration (with interest
on overdue installments of interest (to the extent that
payment of such interest is enforceable under applicable law)
and on such principal and premium at the rate borne by the
Securities of that series, to the date of such payment or
deposit); and
(B) all amounts paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) any and all defaults with respect to Securities
of that series under this Indenture, other than the nonpayment of
principal of and any premium and accrued interest on Securities that
shall have become due by acceleration, shall have been cured or waived
as provided in Section 4.07.
No such waiver or rescission and annulment shall extend or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee or any Securityholder shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee or any
Securityholder, then and in every such case the Company, the Trustee and such
Securityholders, subject to any determination in such proceeding, shall be
restored respectively to their several positions and rights under this
Indenture, and all rights, remedies and powers of the Company, the Trustee and
such Securityholders shall continue as though no such proceeding had been taken.
SECTION 4.02. Payment of Securities on Default; Suit Therefor.
(a) In case default shall be made in the payment of (i) any installment of
interest upon any of the Securities as and when the same shall become due and
payable, and such default shall have continued for a period of 30 days, or (ii)
the principal of or any premium on any of the Securities as and when the same
shall have become due and payable whether at Maturity of the Securities, by
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit
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of the holders of the Securities, the whole amount that then shall have become
due and payable on all such Securities for principal, premium or interest, or
any combination thereof, as the case may be, with interest upon the overdue
principal and premium and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest, at
the rate borne by the Securities; and, in addition, such further amount as shall
be sufficient to cover the costs and expenses of collection, including
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents, attorneys and counsel.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the amounts so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
any other obligor on the Securities and coupons and collect in the manner
provided by law out of the property of the Company or any other obligor on the
Securities and coupons, wherever situated, the money adjudged or decreed to be
payable.
(c) In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company, any Subsidiary (other than
any Immaterial Insolvent Subsidiaries) or any other obligor on the Securities
and coupons under Title 11 of the United States Code or any other applicable
law, or in case a receiver or trustee shall have been appointed for the property
of the Company, any Subsidiary (other than any Immaterial Insolvent
Subsidiaries) or such other obligor, or in the case of any other similar
judicial proceedings relative to the Company or other obligor on the Securities
and coupons, or to the creditors or property of the Company, such Subsidiary
(other than any Immaterial Insolvent Subsidiaries) or such other obligor, the
Trustee, irrespective of whether the principal of the Securities shall then be
due and payable as expressed in the Securities or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand pursuant to
the provisions of this Section 4.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and any premium and interest owing and
unpaid in respect of the Securities, and, in case of any judicial proceedings,
(i) to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Securityholders allowed in such
judicial proceedings relative to the Company, any Subsidiary (other than any
Immaterial Insolvent Subsidiaries) or any other obligor on the Securities and
coupons, its or their creditors, or its or their property, and (ii) to collect
and receive any money or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee any amount due
it for reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel and any other amounts due the Trustee under
Section 5.06. To the extent that such payment of reasonable compensation,
expenses and counsel fees out of the trust estate in any such proceedings shall
be denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money,
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securities and other property which the holders of the Securities and coupons
may be entitled to receive in such proceedings, whether in liquidation or under
any plan of reorganization or arrangement or otherwise.
(d) Nothing contained in this Section 4.02 shall be deemed to
authorize the Trustee to authorize or consent to or adopt on behalf of any
Securityholder any plan of reorganization or arrangement affecting the
Securities or related coupons or the rights of any Securityholder, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Securities or related coupons, may be enforced by
the Trustee without the possession of any of the Securities or coupons, or the
production thereof in any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, shall be for
the ratable benefit of the holders of the Securities and related coupons.
SECTION 4.03. Application of Money Collected by Trustee. Any
money collected by the Trustee with respect to any series of Securities or
related coupons pursuant to Section 4.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such money, upon presentation of the several Securities of such series or
coupons, or both, as the case may be, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts then due the Trustee
under Section 5.06;
SECOND: In case the principal of the Outstanding Securities of
that series shall not have become due and be unpaid, to the payment of
interest on the Securities of that series in the order of the Maturity
of the installments of such interest, with interest (to the extent
enforceable under applicable law) upon the overdue installments of
interest at the rate borne by the Securities of that series, such
payments to be made ratably to the persons entitled thereto; and
THIRD: In case the principal of the Outstanding Securities of
that series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities
of that series for principal and any premium and interest, with
interest on the overdue principal and any premium and (to the extent
enforceable under applicable law) upon overdue installments of interest
at the rate borne by the Securities of that series; and in case such
money shall be insufficient to pay in full the whole amounts so due and
unpaid upon the Securities of that series, then to the payment of such
principal and any premium and interest without preference or priority
of principal over interest, or of interest over principal, or of any
premium over principal or interest, or of principal or interest over
any premium or of any installment of interest over any other
installment of interest, or of any Security of that series over any
other Security
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of that series, or of any coupon related to a Security of a series over
any other coupon related to a Security of the same series, ratably to
the aggregate of such principal and any premium and accrued and unpaid
interest.
SECTION 4.04. Proceedings by Securityholders. No holder of any
Security of any series or any related coupon shall have any right to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy under this Indenture, unless such holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as provided in Section 4.01, and unless also (i) the holders of not less than
25% in aggregate principal amount of the Securities of that series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee under this Indenture and
shall have offered to the Trustee such reasonable indemnity as the Trustee may
require against the costs, expenses and liabilities to be incurred in compliance
with such request, (ii) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and (iii) no direction
inconsistent with such written request has been given to the Trustee during such
60-day period by the holders of a majority in principal amount of the
Outstanding Securities of that series; it being understood and intended, and
being expressly covenanted by each Person who acquires and holds a Security or
related coupon with every other such Person, that no one or more holders of
Securities shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other holder of such Securities or coupons, or to obtain or seek
to obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner provided in this Section
4.04 and for the equal, ratable and common benefit of all holders of Securities
and coupons.
Notwithstanding any other provision of this Indenture,
however, the right of any holder of any Security to receive payment of the
principal of and any premium and interest on such Security on or after the
respective Stated Maturities, or to institute suit for the enforcement of any
such payment on or after such respective dates against the Company, shall not be
impaired or affected without the consent of such holder.
SECTION 4.05. Proceedings by Trustee. In case of an Event of
Default under this Indenture, the Trustee in its discretion may proceed to
protect and enforce its rights and the rights of the Securityholders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
proper remedy or legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 4.06. Remedies Cumulative and Continuing; Delay or
Omission Not Waiver. All rights, powers and remedies conferred upon or reserved
to the Trustee or to the Securityholders, to the extent permitted by law, shall
be deemed cumulative and not exclusive of any thereof or of any other rights,
powers and remedies available to the Trustee or the holders of the Securities
and related coupons, now or hereafter existing, by judicial proceedings or
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otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture; and no delay or omission of the Trustee
or of any holder of any of the Securities or related coupons to exercise any
such right, power or remedy shall impair any such right, power or remedy, or
shall be construed to be a waiver of any default or an acquiescence in such
default; and, subject to the provisions of Section 4.04, every power and remedy
conferred upon or reserved to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders. The assertion of any right, power or remedy
shall not prevent the concurrent assertion of any other right, power or remedy.
SECTION 4.07. Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders. (a) The holders of a majority in aggregate
principal amount of the Securities of all series affected (voting as one class)
at the time Outstanding determined in accordance with Sections 6.04 and 6.06
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided, however, that (i) such direction may
not be in conflict with law or this Indenture or expose the Trustee to personal
liability or be unduly prejudicial to the holders of the Securities and related
coupons not joining in the direction, and (ii) the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with this Indenture
and such direction.
(b) Prior to any declaration that the principal of the
Outstanding Securities of any series is due and payable, the holders of a
majority in aggregate principal amount of the Securities of that series at the
time Outstanding on behalf of the holders of all of the Securities of that
series may waive any past default or Event of Default under this Indenture and
its consequences except a default under a covenant in this Indenture that,
pursuant to Section 8.02, cannot be modified without the consent of each holder
of a Security of the series affected thereby. Upon any such waiver the Company,
the Trustee and the holders of the Securities of that series and the related
coupons shall be restored to their former positions and rights under this
Indenture, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default under this Indenture shall have been
waived as permitted by this Section 4.07, such default or Event of Default, for
all purposes of the Securities, the related coupons and this Indenture, shall be
deemed to have been cured and to be not continuing.
SECTION 4.08. Notice of Defaults. The Trustee, within 90 days
after the occurrence of a default with respect to Securities of any series,
shall mail to all Securityholders of that series, at their addresses shown on
the Security Register, notice of all such defaults known to the Trustee, unless
such defaults shall have been cured or waived before the giving of such notice
(the term "default" for the purpose of this Section 4.08 being hereby defined to
mean any event which constitutes or after notice or lapse of time or both would
constitute an Event of Default); and provided that, except in the case of
default in the payment of the principal of or any premium or interest on any of
the Securities of that series or in the making of any sinking fund payment or
analogous obligation with respect to Securities of that series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a
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trust committee of directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Securityholders of that series.
SECTION 4.09. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Security or coupon by his acceptance
thereof shall be deemed to have agreed, that any court in its discretion may
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit and that such court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant; provided, however, that the provisions of this Section 4.09 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of that series, or to any
suit instituted by any Securityholder for the enforcement of the payment of the
principal of or any premium or interest on any Security on or after the
respective Stated Maturities (or, in the case of redemption or repayment, on or
after the redemption date or repayment date).
SECTION 4.10. 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 had been enacted.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of Trustee. In case
an Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, its own willful misconduct or any action or failure to act taken
or omitted by it in bad faith, except that:
(a) except during the continuance of an Event of Default:
(1) the duties and obligations of the
Trustee shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part
of the Trustee, the Trustee conclusively may rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but, in the case of any such certificates or
opinions that by any provisions of this Indenture specifically
are required to be furnished to the Trustee, the Trustee shall
be under a
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duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding
(determined as provided in Section 6.04) relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
Whether or not expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
5.01.
The provisions of this Section 5.01 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act.
SECTION 5.02. Reliance on Documents, Opinions, etc. Subject to
the applicable provisions of the Trust Indenture Act and in furtherance thereof
and subject to the provisions of Section 5.01:
(a) the Trustee may rely and shall be protected in acting upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it under this Indenture in
good faith and in accordance with such Opinion of Counsel;
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(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, coupon or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books and records of the Company to the extent reasonably
necessary to verify such facts or matters; and
(g) the Trustee may execute any of the trusts or powers under this
Indenture or perform any duties under this Indenture either directly or by
or through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care under this Indenture.
SECTION 5.03. No Responsibility for Recitals, etc. The recitals
contained in this Indenture and in the Securities (except in the Trustee's
certificate of authentication) and in any coupons shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or the coupons. The
Trustee shall not be accountable for the use or application by the Company of
any Securities or the proceeds of any Securities authenticated and delivered by
the Trustee.
SECTION 5.04. Trustee, Paying Agents or Registrar May Own
Securities. Subject to the applicable provisions of the Trust Indenture Act, the
Trustee or any Paying Agent or Security registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, Paying Agent or Security registrar.
SECTION 5.05. Money to Be Held in Trust. Subject to the provisions
of Section 13.03 and Section 13.04, all money received by the Trustee, until
used or applied as herein provided, shall be held in trust for the purposes for
which it was received. Money held by the Trustee need not be segregated from
other funds except as provided by law. The Trustee shall be under no liability
for interest on any money received by it under this Indenture, except as the
Company and the Trustee otherwise may agree.
SECTION 5.06. Compensation and Expenses of Trustee. The Company will
pay to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation for
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all services rendered by it under this Indenture (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith or
willful misconduct. The Company also covenants to indemnify the Trustee for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the Trustee and
arising out of or in connection with the acceptance or administration of this
trust, including the reasonable costs and expenses (including the reasonable
costs and expenses of its counsel) of defending itself against any claim of
liability in connection with the exercise or performance of any of its powers
under this Indenture. The obligations of the Company under this Section 5.06
shall constitute additional Indebtedness under this Indenture.
SECTION 5.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 5.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action under this
Indenture, such matter (unless other evidence in respect thereof be herein
specifically prescribed), in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, may be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee, and such
Officers' Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee for
any action taken or omitted by it under the provisions of this Indenture upon
the faith of such Officers' Certificate.
SECTION 5.08. Eligibility of Trustee. The Trustee under this
Indenture shall at all times be a corporation organized and doing business under
the laws of the United States or any State thereof or of the District of
Columbia (or a corporation or other person permitted to act as Trustee by the
Commission) authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal, State or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 5.08 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 5.08, the Trustee shall resign immediately in the
manner and with the effect specified in Section 5.09. Neither the Company nor
any person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee under this Indenture.
SECTION 5.09. Resignation or Removal of Trustee. (a) The Trustee may
resign at any time by giving written notice of such resignation to the Company,
by mailing notice of such resignation to the holders of Registered Securities at
their addresses as they shall appear on the Security Register and, if any Bearer
Securities are Outstanding, by publishing notice of such
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resignation in a newspaper of general circulation, in each Place of Payment for
such Bearer Securities, customarily published at least once a day for at least
five days in each calendar week.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request therefor
by the Company or by any Securityholder who has been a bona fide holder of
a Security or Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.08 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or a public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee by written
instrument, executed by Company Order authorized by the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee (with written notice of such removal mailed to the
holders of Registered Securities at their address as they shall appear on the
Security Register, and, if any Bearer Securities are Outstanding, by publishing
notice of such resignation in a newspaper of general circulation, in each Place
of Payment for such Bearer Securities, customarily published at least once a day
for at least five days in each calendar week), or, subject to the provisions of
Section 4.09, any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months, on behalf of himself and all others
similarly situated, may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(c) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company promptly shall appoint a successor Trustee by a Company Order authorized
by the Board of Directors, one copy of which instrument shall be delivered to
the retiring Trustee and one copy to the successor Trustee. If, within one year
after such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee shall be appointed by the holders of a majority in
principal amount of the Securities (voting as a single class) at the time
Outstanding by instrument or instruments delivered to the Company and the
retiring Trustee, the successor Trustee so appointed, forthwith upon its
acceptance of such appointment, shall become the successor Trustee and supersede
the successor Trustee appointed by the Company. If no successor Trustee shall
have been so appointed by the Company or the Securityholders and accepted
appointment in the manner provided in Section 5.10 within 60 days after notice
of the resignation or removal of the Trustee is mailed to the Securityholders,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months, subject to the
provisions of Section 4.09, on behalf
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of such holder and all other holders similarly situated, may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(d) The holders of a majority in aggregate principal amount of the
Securities (voting as a single class) at the time Outstanding at any time, upon
notice to the Trustee, may remove the Trustee.
(e) Any removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 5.09 shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 5.10. Any resignation of the Trustee shall become effective only upon
the appointment of a successor Trustee and upon the acceptance of appointment by
the successor Trustee as provided in Section 5.10.
SECTION 5.10. Acceptance by Successor Trustee. Any successor Trustee
appointed as provided in Section 5.09 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment under this Indenture, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor under this Indenture,
with like effect as if originally named as Trustee in this Indenture; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act, upon payment of any amounts then due it pursuant to
the provisions of Section 5.06, shall execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall transfer, assign and deliver to such successor all
property and money held by such predecessor Trustee under this Indenture. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act,
nevertheless shall retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to the provisions of
Section 5.06.
No successor Trustee shall accept appointment as provided in this
Section 5.10 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 310(b) of the Trust Indenture Act
and eligible under the provisions of Section 5.08.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 5.10, the Company shall mail notice of the succession of such
Trustee under this Indenture to the holders of Registered Securities at their
addresses as they shall appear on the Security Register, and, if any Bearer
Securities are Outstanding, by publishing notice of such resignation in a
newspaper of general circulation, in each Place of Payment for such Bearer
Securities, customarily published at least once a day for at least five days in
each calendar week. If the Company fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed and, if necessary, published at the expense
of the Company.
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SECTION 5.11. Succession by Merger, etc. Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties to this Indenture
provided such corporation shall be qualified under the provisions of Section
310(b) of the Trust Indenture Act and eligible under the provisions of Section
5.08.
In case at the time such successor Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor Trustee may authenticate such
Securities either in the name of any predecessor Trustee under this Indenture or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.01. Action by Securityholders. Whenever in this Indenture
it is provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined in such action may
be evidenced (i) by any instrument or any number of instruments of similar tenor
executed by Securityholders in person or by agent or proxy appointed in writing,
(ii) by the record of the holders of Securities voting in favor of such action
at any meeting of Securityholders duly called and held in accordance with the
provisions of this Article Six or (iii) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders. The
Company may set a record date for purposes of determining the identity of
holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall be the later of ten
days prior to the first solicitation of such consent or the date of the most
recent list of holders furnished to the Trustee pursuant to the provisions of
Section 312(a) of the Trust Indenture Act prior to such solicitation. If a
record date is fixed, those persons who were holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consents or to revoke any vote or
consent previously given, whether or not such persons continue to be holders
after such record date. No such vote or consent shall be valid or effective if
such vote occurs or such consent is obtained more than 120 days after such
record date.
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SECTION 6.02. Proof of Execution by Securityholders. (a) Subject to
the provisions of Sections 5.01, 5.02 and 7.05, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee.
(b) The ownership of Registered Securities of any series shall be
proved by the Security Register or by a certificate of the Security registrar of
such series.
(c) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, (ii) such Bearer Security is produced to
the Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section 6.02(c).
(d) The record of any Securityholders' meeting shall be proved in
the manner provided in Section 7.07.
SECTION 6.03. Who Are Deemed Absolute Owners. Prior to due
presentation of a Registered Security for registration of transfer, the Company,
the Trustee, any Paying Agent and any Security registrar may treat the Person in
whose name such Registered Security is registered as owner of such Registered
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 2.09) interest on such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security is overdue
and notwithstanding any notation of ownership or other writing on such
Registered Security made by anyone other than the Company or any Security
registrar, and neither the Company, the Trustee, any Paying Agent nor any
Security registrar shall be affected by any notice to the contrary. All such
payments so made to any such holder as shown in the Security Register, or upon
his order, shall be valid, and, to the extent of the amount so paid, effectual
to satisfy and discharge the liability for money payable upon any such
Registered Security.
The Company, the Trustee, any Paying Agent and any Security
registrar may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such
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Bearer Security or coupon for the purpose of receiving payment thereof or on
account thereof and for all other purposes whatsoever, whether or not such
Bearer Security or coupon is overdue, and neither the Company, the Trustee, any
Paying Agent nor any Security registrar shall be affected by any notice to the
contrary. All such payments so made to any such bearer shall be valid and, to
the extent of the amount so paid, effectual to satisfy and discharge the
liability for money payable upon any such Bearer Security.
None of the Company, the Trustee, any Paying Agent or the Security
registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 6.04. Company-Owned Securities Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any direction, consent, waiver or other action under this
Indenture, Securities that are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination; provided, however, that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Securities that the Trustee
knows are so owned shall be so disregarded.
SECTION 6.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities of any or all series specified in
this Indenture in connection with such action, any holder of a Security the
serial number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action, by filing written notice
with the Trustee at the principal office of the Trustee and upon proof of
holding as provided in Section 6.02, may revoke such action so far as concerns
such Security. Except as provided in this Section 6.05 any such action taken by
the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders and owners of such Security, irrespective of whether or
not any notation in regard thereto is made upon such Security or any Security
issued in exchange or substitution for such Security.
SECTION 6.06. Determination of Outstanding Securities. In
determining whether the holders of the requisite principal amount of Securities
issued under this Indenture have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or present at a meeting of
holders of Securities for quorum purposes:
(a) the principal amount of an Original Issue Discount Security that
will be deemed to be outstanding will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
acceleration of the maturity thereof, and
(b) the principal amount of a Security denominated in a foreign
currency or currency unit will be the U.S. dollar equivalent, determined on the
date of original issuance of
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such Security, of the principal amount of such Security or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent, determined on the
date of original issuance of such Security, of the amount determined as provided
in Section 6.06(a) above.
ARTICLE SEVEN
SECURITYHOLDERS' MEETINGS
SECTION 7.01. Purposes of Meetings. A meeting of Securityholders of
any or all series may be called at any time and from time to time pursuant to
the provisions of this Article Seven for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default under this Indenture and its consequences, or to take any other
action authorized to be taken by Securityholders pursuant to any of the
provisions of Article Four;
(2) to remove the Trustee and nominate a successor Trustee
pursuant to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental to this Indenture pursuant to the provisions of Section 8.02;
or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under applicable
law.
SECTION 7.02. Call of Meetings by Trustee. The Trustee at any time
may call a meeting of Securityholders of any or all series to take any action
specified in Section 7.01, to be held at such time and at such place in The City
of New York for Registered Securities and the City of London, England for Bearer
Securities, as the Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders, if any, of Registered Securities of each series affected at their
addresses as they shall appear on the Security Register, and shall be provided
to holders, if any, of Bearer Securities of each series affected by publication
thereof in a newspaper of general circulation, in each Place of Payment for each
such series, customarily published at least once a day for at least five days in
each calendar week. Such notice to holders of Registered Securities shall be
mailed not fewer than 20 nor more than 90 days prior to the date fixed for the
meeting. Such notice to holders of Bearer Securities shall be made by the
required publication on at least two dates, the first such publication to be not
more than 90 days and the second such publication to be not fewer than 20 days
prior to the date fixed for the meeting.
Any meeting of Securityholders shall be valid without notice if the
holders of all Securities then Outstanding of each series affected are present
in person or by proxy or if notice is waived before or after the meeting by the
holders of all Outstanding Securities of each series
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affected, and if the Company and the Trustee are either present by duly
authorized representatives or, before or after the meeting, have waived notice.
SECTION 7.03. Call of Meetings by Company or Securityholders. In
case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least 10% in aggregate principal amount of the
Securities then Outstanding of any or all series, as the case may be, that may
be affected by the action proposed to be taken, shall have requested the Trustee
to call a meeting of Securityholders of any or all series, as the case may be,
that may be so affected, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
mailed or published (as appropriate under Section 7.02) the notice of such
meeting within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place in the city designated in
Section 7.02, as the case may be, for such meeting and may call such meeting to
take any action authorized in Section 7.01, by mailing or publishing notice of
such meeting as provided in Section 7.02.
SECTION 7.04. Qualifications for Voting. To be entitled to vote at
any meeting of Securityholders of any series a Person shall (i) be a holder of
one or more Securities of such series as set forth in the Security Register for
such series or (ii) be a Person appointed by an instrument in writing as proxy
by a holder of one or more Securities of such series, subject to the provisions
of Section 6.02. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the representatives of the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 7.05. Regulations. (a) Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
(b) The Trustee, by an instrument in writing, shall appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 7.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, in like
manner shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
(c) Subject to the provisions of Section 6.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities.
(d) No vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding.
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The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing duly designating him as the
person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 7.02 or
Section 7.03 may be adjourned from time to time by a majority of those present
and the meeting may be held as so adjourned without further notice.
SECTION 7.06. Quorum. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of the Securityholders of such series. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting, if convened at the request of holders of Securities, shall be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not fewer than ten days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not fewer than ten days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 7.02,
except that such notice need be given only once not fewer than five days prior
to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities affected
by the action proposed to be taken which shall constitute a quorum.
SECTION 7.07. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the principal amount of the Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken at such meeting and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
such notice was mailed or published as provided in Section 7.02 or Section 7.03.
The record shall show the principal amount of the Securities voting in favor of
or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of
the matters stated in such record.
SECTION 7.08. No Delay of Rights by Meeting. Nothing in this Article
Seven shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders or any rights expressly or impliedly conferred
under this Article Seven to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved
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to the Trustee or to the Securityholders under any of the provisions of this
Indenture or of the Securities.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee from time to time and at any time may enter into an
indenture or indentures supplemental to this Indenture for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumptions by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Nine;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of any series
of the Securities or coupons as the Board of Directors and the Trustee
shall consider to be for the protection of the holders of such Securities
or coupons, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions or conditions
a default or an Event of Default permitting the enforcement of all or any
of the several remedies set forth in this Indenture; provided, however,
that in respect of any such additional covenant, restriction or condition
such supplemental indenture may provide for notice or a particular period
of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the
Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained in this Indenture or in any supplemental indenture that may be
defective or inconsistent with any other provision contained in this
Indenture or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this Indenture
that shall not adversely affect the interests of the holders of
Outstanding Securities of any series or any related coupons;
(d) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(e) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal or any premium on Registered Securities or of principal or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities or to permit or facilitate
the issuance of
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Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the holders of Outstanding Securities of
any series or any related coupons;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture; provided, however, that such action shall not adversely affect
the interests of the holders of Outstanding Securities of any series;
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America;
(h) to provide for the documentation necessary for the issuance of
Securities at an issue price lower than the principal amount thereof,
including to provide that upon the redemption or acceleration of the
Maturity thereof an amount less than the principal amount thereof shall
become due and payable and that such amount shall be used to determine the
relative voting rights of the holders thereof; or
(i) to conform the Indenture to the provisions of the Trust
Indenture Act as then in effect.
The Trustee hereby is authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be contained in such supplemental indenture
and to accept the conveyance, transfer and assignment of any property under such
supplemental indenture, but the Trustee shall not be obligated to, but in its
discretion may, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 8.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding
any provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures with Consent of
Securityholders of a Series. With the consent (evidenced as provided in Section
6.01) of the holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding of each series affected by such
supplemental indenture or indentures, the Company, when authorized by the
resolutions of the Board of Directors, and the Trustee from time to time and at
any time may enter into an indenture or indentures supplemental to this
Indenture for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the holders of the Securities of each such series;
provided, however, that without the consent of the holder of each Outstanding
Security affected thereby no such supplemental indenture shall: (a) change the
Stated Maturity of the principal of or any premium or any installment of
interest on, any Security, or reduce the principal amount of any Security or any
premium or interest on any Security, or reduce the amount of principal payable
upon acceleration of the Maturity of any Original Issue Discount Security, or
change any Place of Payment where, or the coin or currency in which, the
principal of, or any premium or interest on, any Security is payable, or impair
the right to institute suit for the enforcement of any
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such payment on or after its Stated Maturity; (b) reduce the percentage in
principal amount of Securities of any Series the consent of whose holders is
required for any such supplemental indenture or the consent of whose holders is
required for any waiver of compliance with certain provisions of this Indenture
or certain defaults under this Indenture and their consequences provided for in
this Indenture; or (c) modify the provisions of Section 4.01 providing for the
rescinding and annulment of a declaration accelerating the Maturity of the
Securities of any series, or any of the provisions of this Section 8.02 or
Section 4.07(b), except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders of
such series as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee in its discretion may, but shall not be
obliged to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 8.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 8.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures. Any supplemental indenture executed pursuant to the
provisions of this Article Eight shall comply with the Trust Indenture Act as
then in effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eight, this Indenture shall be and be deemed to be
modified and amended in accordance with such supplemental indenture and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of the series
of Securities affected thereafter shall be determined, exercised and enforced
under this Indenture subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 8.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eight may bear a notation in form acceptable to the
Trustee as to any matter provided for in such supplemental indenture. If the
Company so shall determine, new Securities of any series and any related coupons
so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange, as provided in Section 2.06, for the Outstanding
Securities of such series and any related coupons, upon surrender of such
Outstanding Securities of such series and any related coupons.
SECTION 8.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee. The Trustee, subject to the provisions of Section 5.01 and
Section 5.02, shall
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be entitled to receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article Eight complies with the requirements of this Article Eight.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 9.01. Company May Consolidate, etc., on Certain Terms. The
Company and its Subsidiaries shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets (determined on a
consolidated basis) substantially as an entirety to any Person, unless:
(1) (i) the Company or any Subsidiary of the Company is the
surviving corporation, or (ii) the Person formed by such consolidation or
into which the Company or its Subsidiaries is merged or the Person which
acquires by conveyance or transfer or which leases the properties and
assets of the Company substantially as an entirety shall be a Person
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and expressly shall assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on the Securities, according to their
terms, and the performance of every covenant of this Indenture and in such
series on the part of the Company or such Subsidiary to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and supplemental
indenture comply with this Article Nine and that all conditions precedent
provided for in this Indenture relating to such transaction have been
complied with.
SECTION 9.02. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety in accordance with Section 9.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company in this Indenture, and thereafter, except in the case
of a lease, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities of each series and any related
coupons.
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Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company prior to such succession,
any of or all the Securities of each series issuable under this Indenture which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of upon the
Company Order, and subject to all the terms, conditions and limitations in this
Indenture, the Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee on
its behalf for that purpose. All the Securities so issued shall have in all
respects the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all such Securities had been issued at the date of the execution of
this Indenture.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 10.01. Applicability of Article. Securities of any series
that are redeemable before their Stated Maturity shall be redeemable only in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.01 for Securities of any series) in accordance with this Article
Ten.
SECTION 10.02. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities shall be evidenced by a Company Order.
In case of any redemption at the election of the Company of less than all the
Securities of any series, the Company, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), shall notify the Trustee of such Redemption Date, of the tenor and
terms of the Securities of such series to be redeemed and of the principal
amount of such Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series of like tenor and terms specified by
the Company are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and of such tenor and terms not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denominations for such Securities or
any integral multiple thereof) of the principal amount of such Registered
Securities or such Bearer Securities of a denomination larger than the minimum
authorized denomination for such Registered Securities or such Bearer
Securities.
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The Trustee promptly shall notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 10.04. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 7.02 not fewer than 30 or more than 60
days prior to the Redemption Date. All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after such
date;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(6) that Bearer Securities may be surrendered for payment only
at such place or places that are outside the United States, except as
provided in Section 3.02; and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 10.05. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 3.03(b)) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be the same
date as the Stated Maturity of an installment of interest thereon) accrued
interest on, all the Securities that are to be redeemed on that date; provided,
however, that deposits with respect to Bearer Securities shall be made with a
Paying Agent or Paying Agents located outside the United States except as
otherwise provided in Section 3.02, unless otherwise specified as contemplated
by Section 2.01.
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SECTION 10.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall become due and payable, on the Redemption Date, at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that: (i) installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of coupons for such interest (at an
office or agency located outside the United States except as otherwise provided
in Section 3.02); and (ii) installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant record date for the payment of such interest
according to the terms of such Securities.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to hold each
of them and any Paying Agent harmless. If thereafter the holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such holder shall be entitled to receive the amount so deducted on
account of such coupon without interest thereon; provided, however, that
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside of the United
States except as otherwise provided in Section 3.02.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security or related coupon.
SECTION 10.07. Registered Securities Redeemed in Part. Any
Registered Security that is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the holder of such Security without service
charge, a new Registered Security or new Registered Securities of the same
series and of like tenor and terms, of any authorized denomination as requested
by such holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE ELEVEN
SINKING FUNDS
SECTION 11.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
SECTION 11.02. Satisfaction of Sinking Fund Payments with
Securities. The Company
(1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and
(2) may apply as a credit Securities of a series that have
been repurchased at the option of a holder or redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund, and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 11.03. Redemption of Securities for Sinking Fund. Not fewer
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment of that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 11.02 and also will deliver to the Trustee any Securities to be so
delivered. Not fewer than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 10.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 10.06 and Section 10.07.
52
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ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 12.01. Terms Set Forth in the Securities. Securities of any
series which in accordance with their terms are repayable at the option of the
holders thereof before their Stated Maturity shall be repaid in accordance with
the terms set forth in such Securities.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Securities of any series and any
related coupons theretofore authenticated (other than any Securities of such
series and any related coupons that shall have been mutilated, destroyed, lost
or stolen and in lieu of or in substitution for which other Securities or
coupons shall have been authenticated and delivered) and not theretofore
canceled, or (b) all the Securities of any series and any related coupons not
theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds sufficient to pay upon
Stated Maturity, redemption or repayment at the option of a holder all the
Securities of such series and related coupons (other than any Securities of such
series and related coupons that shall have been mutilated, destroyed, lost or
stolen and that have been replaced or paid as provided in Section 2.06) not
theretofore canceled or delivered to the Trustee for cancellation, including
principal and any premium and interest due or to become due prior to such Stated
Maturity, Redemption Date or date of repayment, as the case may be, but
excluding, however, the amount of any money for the payment of principal of or
any premium or interest on the Securities
(1) theretofore deposited with the Trustee and repaid by the
Trustee to the Company in accordance with the provisions of Section 13.04,
or
(2) paid to any State or the District of Columbia pursuant to
its unclaimed property or similar laws, and if in either case the Company
also shall pay or cause to be paid all other sums payable under this
Indenture by the Company
then this Indenture shall cease to be of further effect with respect to
Securities of such series and any related coupons, and the Trustee, on demand of
the Company accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 15.05 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to Securities of such series and any related coupons. The
obligations of the Company to the Trustee under Section 5.06 shall survive the
termination of this Indenture.
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<PAGE> 60
The Trustee shall notify the Securityholders of such series, at the
expense of the Company, of the immediate availability of the amount referred to
in clause (b) of this Section 13.01 by mailing a notice, first class postage
prepaid, to the holders of Registered Securities of such series at their
addresses as they shall appear on the Security Register, and, if any Bearer
Securities are Outstanding, by publishing notice of such resignation in a
newspaper of general circulation, in each Place of Payment for such Bearer
Securities, customarily published at least once a day for at least five days in
each calendar week.
SECTION 13.02. Deposited Money to Be Held in Trust by Trustee.
Subject to Section 13.04, all money deposited with the Trustee pursuant to
Section 13.01 shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company if acting as its own
Paying Agent, other than as to Bearer Securities, except as provided in Section
3.02), to the holders of the particular Securities and related coupons for the
payment of which such money has been deposited with the Trustee, of all sums due
and to become due thereon for principal and any premium and interest.
SECTION 13.03. Paying Agent to Repay Money Held. Upon the
satisfaction and discharge of this Indenture all money then held by any Paying
Agent (other than the Trustee), upon demand of the Company, shall be repaid to
it or paid to the Trustee, and thereupon such Paying Agent shall be released
from all further liability with respect to such money.
SECTION 13.04. Return of Unclaimed Money. Any money deposited with
or paid to the Trustee or any Paying Agent for payment of the principal of or
any premium or interest on Securities of any series, or then held by the Company
in trust for the payment of the principal of or any premium or interest on
Securities of any series, and not applied but remaining unclaimed by the holders
of Securities of that series for two years after the date upon which the
principal or any premium or interest on such Securities, as the case may be,
shall have become due and payable, shall be repaid to the Company by the Trustee
on demand or, if then held by the Company, shall be discharged from such trust,
and all liability of the Trustee thereupon shall cease; and the holder of any of
such Securities thereafter, as an unsecured general creditor, shall look only to
the Company for payment of such Securities, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, thereupon shall cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
at the expense of the Company, in the case of Registered Securities or Bearer
Securities, may cause to be published once, in a newspaper of general
circulation in each Place of Payment for such series customarily published on
each Business Day (whether or not published on Saturdays, Sundays or holidays)
or, in the case of Registered Securities, to be mailed to each such holder, or
in the case of Registered Securities to be mailed and published, notice that
such money remains unclaimed and that, after a date specified in such notice,
which shall not be fewer than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 13.05. Discharge of Indenture as to Certain Series of
Securities. (a) If this Section 13.05 is specified in the manner contemplated by
Section 2.01 to be applicable to the Securities of any series, the Company shall
be deemed to have paid and discharged the entire Indebtedness on all the
Securities of any such series at the time Outstanding and, upon Company
54
<PAGE> 61
Order, the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction, discharge and defeasance of such
Indebtedness, when:
(1) either:
(A) with respect to all Securities of such series at the
time Outstanding, the Company shall have deposited or caused to be
deposited irrevocably with the Trustee for such series as trust
funds in trust (1) in the case of Securities denominated in a
foreign currency, money in such foreign currency, Foreign Government
Obligations of the foreign government or government issuing such
foreign currency or a combination thereof, (2) in the case of
Securities denominated in U.S. dollars, U.S. Government Obligations
or a combination thereof, in each case in an amount that through the
payment of interest and principal and premium in respect thereof in
accordance with their terms will provide (without any reinvestment
of such interest or principal), not later than one Business Day
before the due date of any payment in respect of the Securities for
such series, money in an amount sufficient (in the case of a deposit
including any U.S. Government Obligations, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee at or prior to the time of such deposit) to pay and
discharge each installment of principal of (including any mandatory
sinking fund payments), and premium, if any, and interest on, the
Outstanding Securities of such series on the dates such installments
of principal and premium, if any, and interest are due or upon the
Stated Maturity, Redemption Date or repayment at the option of a
holder of such series, as applicable; or
(B) the Company properly has fulfilled such other means
of satisfaction and discharge as is specified, in the manner
contemplated by Section 2.01, to be applicable to the Securities of
such series;
(2) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, would become an Event of
Default with respect to the Securities of such series shall have occurred
and be continuing on the date of such deposit as evidenced to the Trustee
in an Officers' Certificate delivered concurrently with such deposit to
the Trustee;
(3) the Company shall have paid or caused to be paid all other
sums payable with respect to the Securities of such series at the time
Outstanding;
(4) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, or the
Company has obtained a waiver of any such breach, violation or default;
(5) unless otherwise specified in the manner contemplated by
Section 2.01, the Company shall have delivered to the Trustee an Opinion
of Counsel to
55
<PAGE> 62
the effect that holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of the Company's exercise of its option under this Section 13.05 and will
be subject to Federal income tax on the same amount and in the manner and
at the same times as would have been the case if such option had not been
exercised and, in the case of the Securities of such series being
discharged, accompanied by a ruling to that effect received from or
published by the Internal Revenue Service; and
(6) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction,
discharge and defeasance of the entire Indebtedness on all Securities of
any such series at the time Outstanding have been complied with.
(b) "U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America which in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof. "Foreign Government Obligations" means securities denominated in a
foreign currency that are (1) direct obligations of a foreign government for the
payment of which its full faith and credit is pledged or (2) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
a foreign government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such foreign government, that, in either
case, under clauses (1) and (2) are not callable or redeemable at the option of
the issuer thereof.
(c) Upon the satisfaction of the conditions set forth in this
Section 13.05 with respect to all the Securities of any series at the time
Outstanding, the terms and conditions of such series, including the terms and
conditions with respect thereto set forth in this Indenture, shall no longer be
binding upon, or applicable to, the Company (except as to any surviving rights
of conversion or registration of transfer or exchange and rights relating to
mutilated, destroyed, lost and stolen Securities pursuant to Section 2.07 of
Securities of such series expressly provided for herein or in the form of
Security of such series); provided, however, that the Company shall not be
discharged from any payment obligations in respect of Securities of such series
which are deemed not to be Outstanding under clause (c) of the definition
thereof if such obligations continue to be valid obligations of the Company
under applicable law.
SECTION 13.06. Repayment to Company of Deposits Made Pursuant to
Section 13.05. After the payment in full of the entire Indebtedness of a series
of Securities with respect to which a deposit has been made with the Trustee
pursuant to Section 13.05, the Trustee and any Paying Agent for such series upon
Company Order promptly shall return to the Company any money or U.S. Government
Obligations held by them that are not required for the payment of the principal
of and any premium and interest on the Securities of such series.
56
<PAGE> 63
SECTION 13.07. Deposits Irrevocable. Any deposit referred to in
Section 13.01 and Section 13.05(a)(1)(A) shall be irrevocable. If any Securities
of a series with respect to which a deposit has been made pursuant to Section
13.01 and Section 13.05(a)(1)(A) at the time Outstanding are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
Company shall make such arrangements as are satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company.
SECTION 13.08. Reinstatement. If the Trustee is unable to apply any
money or U.S. Government Obligations in accordance with Section 13.01 or Section
13.05 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 13.01 or Section 13.05 until such time as the Trustee is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 13.01 or Section 13.05.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Securities Solely Corporate
Obligations. No recourse for the payment of the principal of or any premium or
interest on any Security, or for any claim based on any Security or coupon or
otherwise in respect of any Security or coupon, and no recourse under or upon
any obligation, covenant or agreement of the Company in this Indenture or in any
Security, or because of the creation of any Indebtedness represented by any
Security or coupon, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities and coupons.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements contained in this Indenture by
the Company shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. Official Acts by Successor Corporation. Any act or
proceeding by any provisions of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and
57
<PAGE> 64
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
SECTION 15.03. Addresses for Notices, etc. Any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Securities on the Company may be
given or served by being deposited postage prepaid by registered or certified
mail in a post office letter box addressed (until another address is filed by
the Company with the Trustee) to Tiffany & Co., 727 Fifth Avenue, New York, New
York 10022, Attention: Chief Financial Officer. Any notice, direction, request
or demand by any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at: ________________________________________________________________________,
Attention: Corporate Trust Administration.
SECTION 15.04. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 15.05. Evidence of Compliance with Conditions Precedent.
Upon any application or request by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than certificates provided pursuant to
Section 4.04, which certificates shall comply with the requirements of Section
4.04) shall include: (i) a statement that the person making such certificate or
opinion has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinion contained in such certificate or opinion are based; (iii) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
The provisions of this Section 15.05 are in furtherance of and
subject to Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act.
SECTION 15.06. Legal Holidays. Unless otherwise specified in the
manner contemplated by Section 2.01, in any case where the Stated Maturity of
principal of or any premium or interest on the Securities will not be a Business
Day, payment of such principal, premium or interest need not be made on such
date but may be made on the next following Business Day with the same force and
effect as if made on the Stated Maturity and, if such
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<PAGE> 65
principal, premium or interest is duly paid on such next following Business Day,
no interest shall accrue for the period from and after such Stated Maturity to
such next following Business Day.
SECTION 15.07. Trust Indenture Act to Control. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
provision of the Trust Indenture Act, such required provision shall control.
SECTION 15.08. No Security Interest Created. Nothing in this
Indenture or in the Securities or coupons, expressed or implied, shall be
construed to constitute a security interest under the Uniform Commercial Code or
similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction where property of the Company or its Subsidiaries is located.
SECTION 15.09. Benefits of Indenture. Nothing in this Indenture or
in the Securities or coupons, express or implied, shall give to any Person,
other than the parties to this Indenture, any Paying Agent, any Security
registrar and their successors under this Indenture and the holders of
Securities or coupons any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 15.10. Table of Contents, Headings, etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions of this Indenture.
SECTION 15.11. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
____________________ hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions set forth above in this
Indenture.
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IN WITNESS WHEREOF, TIFFANY & CO. has caused this Indenture to be
signed and acknowledged by its President or a duly authorized Vice President,
and its corporate seal to be affixed hereunto, and the same to be attested by
its Secretary or Assistant Secretary, and _______________ has caused this
Indenture to be signed and acknowledged by ____________, and has caused its
corporate seal to be affixed hereunto and the same to be attested by
____________, as of the day and year first written above.
TIFFANY & CO.
By:________________________________
Name:
Title:
[SEAL]
Attest:
________________________________
Secretary
[TRUSTEE]
By:________________________________
Name:
Title:
[SEAL]
Attest:
________________________________
Title:
60
<PAGE> 1
Exhibit 5.1
July 12, 1999
(212) 351-4000 C 91172-00048
Tiffany & Co.
727 Fifth Avenue
New York, New York 10022
Re: Registration Statement of Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (the "Registration
Statement") of Tiffany & Co., a Delaware corporation (the "Company"), filed
today with the Securities and Exchange Commission (the "Commission") pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), in connection
with the offering and issuance from time to time by the Company of up to
$125,000,000 aggregate offering price of (i) one or more series of its debt
securities (the "Debt Securities") and (ii) shares of its Common Stock, par
value $.01 per share (the "Common Stock"). All capitalized terms which are not
defined herein shall have the meanings assigned to them in the Registration
Statement.
For the purpose of the opinion set forth below, we have examined and are
familiar with the proceedings taken and proposed to be taken by the Company in
connection with the authorization and issuance of the Shares, including such
corporate records of the Company and certificates of officers of the Company and
of public officials and such other documents as we have deemed relevant and
necessary as the basis for the opinion set forth below. In such examination, we
have assumed the genuineness of all signatures on, and the authenticity of, all
documents submitted to us as originals and the conformity to original documents
of all documents submitted to us as copies. With respect to agreements and
instruments executed by natural persons, we have assumed the legal competency of
such persons.
On the basis of the foregoing examination, and in reliance thereon, we are
of the opinion that (subject to compliance with the pertinent provisions of the
Act and, with respect to the
<PAGE> 2
Tiffany & Co.
July 12, 1999
Page 2
Indentures (as defined below) and the Debt Securities, the Trust Indenture Act
of 1939, as amended, and to compliance with such securities or "blue sky" laws
of any jurisdiction as may be applicable):
1. When (a) the Debt Securities in substantially the form contained in the
form of Senior Debt Securities Indenture (as amended or supplemented in
accordance with the respective terms thereof, the"Indenture") shall have been
authorized, executed and authenticated in accordance with the terms of the
Indenture, (b) the Indenture shall have been qualified under the Trust Indenture
Act of 1939, duly executed and delivered and (c) the Debt Securities shall have
been issued and sold as described in the Registration Statement, and if in an
underwritten offering, in accordance with the terms and conditions of the
applicable underwriting agreement, and in a manner contemplated in the
Registration Statement, including the Prospectus Supplement relating to any such
Debt Securities, the Debt Securities will be duly authorized and valid and
binding obligations of the Company, subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, arrangement or similar laws affecting
the enforcement of creditors' rights generally (including the effect of
statutory or other laws regarding fraudulent transfers or preferential
transfers) and general principles of equity, regardless of whether
enforceability is considered in a proceeding in equity or at law.
2. When the Common Stock shall have been authorized, issued and sold
within the limits and as described in the Registration Statement, and if in an
underwritten offering, in accordance with the terms and conditions of the
applicable underwriting agreement, and in a manner contemplated in the
Registration Statement, including the Prospectus Supplement relating to the
applicable offering of such Common Stock, the Common Stock will be validly
issued, fully paid and nonassessable.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the laws of the United States of America and the General
Corporation Law of the State of Delaware. In rendering this opinion, we assume
no obligation to revise or supplement this opinion should current laws, or the
interpretations thereof, be changed.
<PAGE> 3
Tiffany & Co.
July 12, 1999
Page 3
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we further consent to the use of our name under the caption
"Legal Matters" in the Registration Statement and the prospectus which forms a
part thereof. In giving these consents, we do not thereby admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
SRF/WMR
<PAGE> 1
Exhibit 12.1
Tiffany & Co.
Ratio of Earnings to Fixed Charges
(In thousands, except ratios)
<TABLE>
For the
Fiscal Year Ended January 31, Three Months Ended
---------------------------------------------- -------------------------------
1995 1996 1997 1998 1999 April 30, 1998 April 30, 1999
---- ---- ---- ---- ---- -------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
Pre-tax earnings $51,566 $69,035 $102,886 $127,758 $155,648 $19,337 $27,857
====================================================================================
Fixed charges:
Interest expense and deferred note
cost amortization $12,632 $11,727 $8,759 $7,466 $8,734 $1,917 $3,442
Interest portion of rent expense 8,905 9,836 10,990 11,115 13,409 3,082 3,530
------------------------------------------------------------------------------------
Total fixed charges $21,537 $21,563 $19,749 $18,581 $22,143 $4,999 $6,972
====================================================================================
Pre-tax earnings plus fixed charges $73,103 $90,598 $122,635 $146,339 $177,791 $24,336 $34,829
====================================================================================
Ratio of earnings to fixed charges 3.39x 4.20x 6.21x 7.88x 8.03x 4.87x 5.00x
====================================================================================
</TABLE>
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 2, 1999 relating to the
financial statements, which appears in the 1998 Annual Report to Shareholders of
Tiffany & Co. and Subsidiaries, which is incorporated by reference in Tiffany &
Co.'s Annual Report on Form 10-K for the year ended January 31, 1999. We also
consent to the incorporation by reference of our report dated March 2, 1999
relating to the financial statements schedule, which appears in such Annual
Report on Form 10-K. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
July 5, 1999
