Exhibit 4.3
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AVON PRODUCTS, INC.
as Issuer
AND
THE CHASE MANHATTAN BANK
as Trustee
-----------------------
Indenture
Dated as of May 11, 1998
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$100,000,000
6.25% Putable/Callable Notes due May 1, 2018,
Putable/Callable May 1, 2003
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Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
---------------- -----------
ss. 310(a)(1) ..................................... 6.09
(a)(2) ..................................... 6.09
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(b) ..................................... 6.08
6.10
ss. 311(a) ..................................... 6.13
(b) ..................................... 6.13
ss. 312(a) ..................................... 7.01
7.02(a)
(b) ..................................... 7.02(b)
(c) ..................................... 7.02(c)
ss. 313(a) ..................................... 7.03(a)
(b) ..................................... 7.03(a)
(c) ..................................... 7.03(a)
(d) ..................................... 7.03(b)
ss. 314(a) ..................................... 7.04
(b) ..................................... Not Applicable
(c)(1) ..................................... 1.02
(c)(2) ..................................... 1.02
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.02
ss. 315(a) ..................................... 6.01
(b) ..................................... 6.02
(c) ..................................... 6.01
(d) ..................................... 6.01
(e) ..................................... 5.14
ss. 3l6(a)(1)(A) ..................................... 5.12
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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(a)(l)(B) ..................................... 5.13
(a)(2) ..................................... Not Applicable
(b) ..................................... 5.08
(c) ..................................... 1.04(c)
ss. 3l7(a)(1) ..................................... 5.03
(a)(2) ..................................... 5.04
(b) ..................................... 10.03
ss. 318(a) ..................................... 1.07
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.............................................1
SECTION 1.02. Compliance Certificates and Opinions....................12
SECTION 1.03. Form of Documents Delivered to Trustee..................12
SECTION 1.04. Acts of Holders; Record Dates...........................13
SECTION 1.05. Notices, Etc., to Trustee, Company and Callholder.......14
SECTION 1.06. Notice to Holders; Waiver...............................15
SECTION 1.07. Conflict with Trust Indenture Act.......................16
SECTION 1.08. Effect of Headings and Table of Contents................16
SECTION 1.09. Successors and Assigns..................................16
SECTION 1.10. Separability Clause.....................................16
SECTION 1.11. Benefits of Indenture...................................16
SECTION 1.12. Governing Law...........................................16
SECTION 1.13. Legal Holidays..........................................16
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally.........................................17
SECTION 2.02. Form of Face of Security................................17
SECTION 2.03. Form of Reverse of Security.............................20
SECTION 2.04. Form of Trustee's Certificate of Authentication.........26
SECTION 2.05. Legend on Restricted Securities.........................26
ARTICLE 3
THE SECURITIES
SECTION 3.01. Title and Terms.........................................26
SECTION 3.02. Denominations...........................................27
SECTION 3.03. Execution, Authentication, Delivery and Dating..........27
SECTION 3.04. Temporary Securities....................................28
SECTION 3.05. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer...........................29
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities........31
SECTION 3.07. Payment of Interest; Interest Rights Preserved..........31
SECTION 3.08. Persons Deemed Owners...................................33
SECTION 3.09. Book-entry Provisions for Global Securities.............33
SECTION 3.10. Cancellation............................................35
SECTION 3.11. Computation of Interest.................................35
SECTION 3.12. Special Transfer Provisions.............................35
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.................36
SECTION 4.02. Application of Trust Money..............................38
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default.......................................38
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment......40
SECTION 5.03. Collection of lndebtedness and Suits for Enforcement by
Trustee............................................41
SECTION 5.04. Trustee May File Proofs of Claim........................41
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.........................................42
SECTION 5.06. Application of Money Collected..........................42
SECTION 5.07. Limitation on Suits.....................................43
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
Interest...........................................43
SECTION 5.09. Restoration of Rights and Remedies......................43
SECTION 5.10. Rights and Remedies Cumulative..........................44
SECTION 5.11. Delay or Omission Not Waiver............................44
SECTION 5.12. Control by Holders......................................44
SECTION 5.13. Waiver of Past Defaults.................................44
SECTION 5.14. Undertaking for Costs...................................45
SECTION 5.15. Waiver of Stay or Extension Laws........................45
SECTION 5.16. Notice to the Callholder of an Event of Default.........45
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ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.....................46
SECTION 6.02. Notice of Defaults......................................46
SECTION 6.03. Certain Rights of Trustee...............................46
SECTION 6.04. Not Responsible for Recitals............................47
SECTION 6.05. May Hold Securities.....................................48
SECTION 6.06. Money Held in Trust.....................................48
SECTION 6.07. Compensation and Reimbursement..........................48
SECTION 6.08. Disqualification; Conflicting Interests.................49
SECTION 6.09. Corporate Trustee Required; Eligibility.................49
SECTION 6.10. Resignation and Removal; Appointment of Successor.......49
SECTION 6.11. Acceptance of Appointment by Successor..................50
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business...........................................51
SECTION 6.13. Preferential Collection of Claims Against...............51
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders............................................51
SECTION 7.02. Preservation of Information; Communications to Holders..52
SECTION 7.03. Reports by Trustee......................................52
SECTION 7.04. Reports by Company......................................53
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms....53
SECTION 8.02. Successor Substituted...................................54
ARTICLE 9
SUPPLEMENTAL INDENTURE
SECTION 9.01. Supplemental Indentures Without Consent of Holders......54
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SECTION 9.02. Supplemental Indentures with Consent of Holders.........55
SECTION 9.03. Execution of Supplemental Indentures....................56
SECTION 9.04. Effect of Supplemental Indentures.......................56
SECTION 9.05. Conformity with Trust Indenture Act.....................56
SECTION 9.06. Reference in Securities to Supplemental Indentures......56
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal and Interest.......................57
SECTION 10.02. Maintenance of Office or Agency.........................57
SECTION 10.03. Money for Security Payments to Be Held in Trust.........57
SECTION 10.04. Statement by Officers as to Default.....................58
SECTION 10.05. Existence...............................................59
SECTION 10.06. Liens...................................................59
SECTION 10.07. Limitation on Restricted Sale/Leaseback Transactions....59
SECTION 10.08. Reports and Delivery of Certain Information.............59
SECTION 10.09. Resale of Certain Securities............................60
SECTION 10.10. Book-Entry System.......................................60
SECTION 10.11. Waiver of Certain Covenants.............................60
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01. Company's Option to Effect Defeasance or Covenant
Defeasance.........................................61
SECTION 11.02. Defeasance and Discharge................................61
SECTION 11.03. Covenant Defeasance.....................................61
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance.........62
SECTION 11.05. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions.................64
SECTION 11.06. Reinstatement...........................................65
ARTICLE 12
CALL AND PUT OPTIONS
SECTION 12.01. Call Option.............................................65
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SECTION 12.02. Put Option..............................................68
SECTION 12.03. Calculation Agent.......................................68
SECTION 12.04. Coupon Reset Process....................................70
SECTION 12.05. The Company as Callholder...............................73
SECTION 12.06. Third Party Beneficiaries...............................73
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INDENTURE, dated as of May 11, 1998, between AVON PRODUCTS, INC., a
corporation duly organized and existing under the laws of the State of New York,
as Issuer (herein called the "Company"), having its principal office at 1345
Avenue of the Americas, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and THE CHASE MANHATTAN
BANK, a banking corporation duly organized under the laws of the State of New
York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 6.25%
Putable/Callable Notes due May 1, 2018, Putable/Callable May 1, 2003 (herein
called the "Securities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt", in respect to any Sale/Leaseback Transaction,
means, as of any time of determination, the present value (discounted at the
rate per annum equal to the rate of interest implicit in the lease involved in
such Sale/Leaseback Transaction, as determined in good faith by the Company) of
the obligation of the lessee thereunder for rental payments (excluding, however,
any amounts required to be paid by such lessee, whether or not designated as
rent or additional rent, on account of maintenance and repairs, insurance,
taxes, assessments, water rates or similar charges or any amounts required to be
paid by such lessee thereunder contingent upon the amount of sales or similar
contingent awards) during the remaining term of such lease (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such rental payments shall also include the amount of such
penalty, but no rental payments shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated.
"Bid" has the meaning specified in Section 12.04(a).
"Bid Date" has the meaning specified in Section 12.04(a).
"Bid Deadline" has the meaning specified in Section 12.04(a).
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"Board of Directors" means, with respect to any Person, either the
board of directors of such Person or any duly authorized committee of that
board.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"Calculation Agent" has the meaning specified in Section 12.03(a).
"Callholder" has the meaning specified in Section 12.01(a).
"Call Notice" has the meaning specified in Section 12.01(b).
"Call Option" has the meaning specified in Section 12.01(a).
"Call Price" means a price equal to 100% of the principal amount of the
Securities.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
3
Chairman of the Board, its President or any Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Tangible Assets" means (a) the total amount of assets
(less applicable reserves and other properly deductible items) which under GAAP
would be included on the most recent audited annual consolidated balance sheet
of the Company and its consolidated Subsidiaries after deducting therefrom,
without duplication, the sum of (i) all current liabilities and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, which in each case under GAAP would be
included on such consolidated balance sheet.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Global
Trust Services.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coupon Reset Date" means May 1, 2003.
"Coupon Reset Process" has the meaning specified in Section 12.04(a).
"Coupon Reset Rate" has the meaning specified in Section 12.04(a).
"Credit Agreement" means the Amended and Restated $600,000,000
Revolving Credit and Competitive Advance Facility Agreement, dated as of August
8, 1996, among the Company, Avon Capital Corporation, the Lenders and Co-Agents
named therein and The Chase Manhattan Bank, as Administrative Agent.
"Dealer" has the meaning specified in Section 12.04(a).
"Dealer List" has the meaning specified in Section 12.04(a).
"Default" means any event that is or with the passage of time or the
giving of notice or both would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 11.02.
4
"Depositary" means The Depository Trust Company until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean such successor Depositary.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Final Maturity Date" means May 1, 2018.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, in each case, as in effect in the United States on the date hereof.
"Global Security" means a Security in global form registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness
secured by a mortgage, pledge, lien, charge, encumbrance of any security
interest existing on property owned by such Person, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance that constitutes an accrued
expense or trade payable or (iv) any lease of property by such Person as lessee
which is reflected in such Person's consolidated balance sheet as a capitalized
lease in accordance with GAAP, in the case of items of Indebtedness under (i)
through (iii) above to the extent that any such items (other than letters of
credit) would appear as a liability on such Person's consolidated balance sheet
in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation by such Person to be
5
liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Indebtedness of
another Person.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Purchasers" means UBS Securities LLC, BancAmerica ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans,
advances or capital contributions, purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Issue Date" means the date the Securities are originally issued under
this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Market Disruption Event" means any of the following in the reasonable
judgment of the Calculation Agent and the Company: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange or
the establishment of minimum prices on such exchange; (ii) a general moratorium
on commercial banking activities declared by either U.S. federal or New York
State authorities; (iii) a material adverse change in the existing financial,
political
6
or economic conditions in the United States; (iv) an outbreak or escalation of
major hostilities involving the United States, or the declaration of a national
emergency or war by the United States; or (v) a material disruption of the U.S.
government securities market, U.S. corporate bond market, or U.S. federal wire
system.
"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 exercise of the Put
Option, declaration of acceleration or otherwise.
"Offering Memorandum" means the Offering Memorandum dated May 6, 1998,
offering the Securities for sale as provided therein.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or any Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 10.04 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
external or in-house counsel for the Company, and who shall be acceptable to the
Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; and
(iii) Securities which have been paid or in exchange for or
in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such
7
Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company. The Trustee
shall initially be the Paying Agent.
"Permitted Liens" means any of the following: (a) Liens on any
Principal Property acquired by the Company or a Subsidiary after the date of
this Indenture to secure or provide for the payment or financing of all or any
part of the purchase price thereof or construction of fixed improvements thereon
(prior to, at the time of or within 180 days after the latest of the
acquisition, completion of construction or commencement of commercial operation
thereof); (b) Liens on any shares of stock or Principal Property acquired by the
Company or a Subsidiary after the date of this Indenture existing at the time of
such acquisition; (c) Liens on any shares of stock or Principal Property of a
corporation which is merged into or consolidated with the Company or a
Subsidiary or substantially all of the assets of which are acquired by the
Company or a Subsidiary; (d) Liens securing Indebtedness of a Subsidiary owing
to the Company or another Subsidiary; (e) Liens existing on the date of this
Indenture; (f) Liens on any Principal Property being constructed or improved
securing loans to finance such construction or improvements; (g) Liens in favor
of governmental bodies of the United States or any State thereof or any other
country or political subdivision thereof to secure partial, progress or advance
payments pursuant to any contract or statute, or to secure any Indebtedness
incurred or guaranteed for the purpose of financing all or any part of the cost
of acquiring, constructing or improving the property subject to such Liens; (h)
Liens securing taxes, assessments or governmental charges or levies not yet
delinquent, or already delinquent but the validity of which is being contested
in good faith; (i) Liens arising by reason of
8
deposits necessary to qualify the Company or any Subsidiary to conduct business,
maintain self-insurance, or obtain the benefit of, or comply with, any law; and
(j) extensions, renewals or replacement of Liens referred to in the foregoing
clauses provided that the Indebtedness secured is not increased nor the Lien
extended to any additional assets.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing plant, testing or research
and development facility, distribution facility, processing plant or warehouse
(including, without limitation, land, fixtures and equipment), owned or leased
by the Company or any Subsidiary (including any of the foregoing acquired or
leased after the date of this Indenture) and located within the United States of
America, its territories and possessions, unless the Board of Directors of the
Company determines in good faith that such plant or facility is not of material
importance to the total business conducted by the Company and its consolidated
Subsidiaries.
"Purchase Agreement" means the Purchase Agreement dated May 6, 1998
entered into by the Company and the Initial Purchasers in connection with the
sale of the Securities.
"Purchase Price" has the meaning specified in Section 12.04(a).
"Put Option" has the meaning specified in Section 12.02(a).
"Put Redemption Price" has the meaning specified in Section 12.02(a).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule l44A.
"Reasonable Cause" has the meaning specified in Section 12.03(e).
9
"Regular Record Date" for the interest payable on any Interest Payment
Date means the fifteenth calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
"Responsible Officer" means any officer of the Trustee within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also, with respect to a particular matter,
any other officer of the Trustee to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Restricted Global Security" means a Global Security representing
Restricted Securities.
"Restricted Sale/Leaseback Transaction" means any Sale/Leaseback
Transaction entered into by the Company or any Subsidiary after the date of this
Indenture, except: (i) Sale/Leaseback Transactions entered into by and between
the Company or a Subsidiary and one or more Subsidiaries of the Company; (ii)
Sale/Leaseback Transactions as to which, during the period commencing 60 days
prior to and ending 120 days after entering into such Sale/Leaseback
Transaction, the Company or a Subsidiary applies an amount equal to the
Attributable Debt with respect to such Sale/Leaseback Transaction to the
acquisition, directly or indirectly and in whole or in part, of one or more
Principal Properties or to the retirement of long-term Indebtedness (other than
mandatory prepayment or retirement) of the Company or any Subsidiary; and (iii)
Sale/Leaseback Transactions involving the taking back of a lease for a period of
three years or less.
"Restricted Securities" has the meaning specified in Section 2.05.
"Rule 144" means Rule 144 under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule l44A" means Rule l44A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Sale/Leaseback Transaction" means any arrangement, directly or
indirectly, with any Person whereby the Company or any Subsidiary shall sell or
transfer any Principal Property whether now owned or hereafter acquired, and
then or thereafter rent or lease as lessee such Principal Property or any part
thereof which the Company or such Subsidiary, as the case may be, intends to use
for substantially the same purpose as the Principal Property being sold or
transferred.
"Secured Debt" has the meaning specified in Section 10.06.
10
"Securities" has the meaning specified in the first paragraph of the
Recitals of the Company.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Securities Premium" has the meaning specified in Section 12.04(a).
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Selected Bid" has the meaning specified in Section 12.04(a).
"Special Record Date" for the payment of Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to the Securities or any
installment of interest thereon, means the date specified in the Securities as
the fixed date on which the principal thereof or such installment of interest is
due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Treasury Rate" has the meaning specified in Section 12.04(a).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
11
"Unrestricted Global Security" means a Global Security representing
Securities which are not Restricted Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Yield to Maturity" has the meaning specified in Section 12.04(a).
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, such individual has made such examination or
investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or
12
covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity,
13
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 1.05. Notices, Etc., to Trustee, Company and Callholder. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust
Services,
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified
14
in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by
the Company, Attention: Treasurer.
(3) the Callholder by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid,
to the Callholder addressed to it at the address below:
Union Bank of Switzerland
London Branch,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention: Derivative Legal Group
DELG/▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Telex: 923333 UBSPDW G
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
15
SECTION 1.07. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto, the Callholder and the Calculation Agent, and their respective
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or at the Stated Maturity, provided that no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or Stated Maturity, as the case may be.
16
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor, the Internal Revenue Code of 1986,
as amended, and regulations thereunder, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
The Securities shall be issued in the form of permanent Global
Securities in registered form in substantially the form set forth in this
Article. The aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
SECTION 2.02. Form of Face of Security. [INCLUDE IF SECURITY IS A
RESTRICTED SECURITY -- THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (D) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR
RESALES AND OTHER
17
TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY SHALL
BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF)
DTC, ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
AVON PRODUCTS, INC.
6.25% Putable/Callable Notes due May 1, 2018,
Putable/Callable May 1, 2003
CUSIP No. _____________________ $100,000,000
Avon Products, Inc., a corporation duly organized and existing under
the laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________________, or registered assigns,
the
18
principal sum of _________________________ Dollars [INCLUDE IF SECURITY IS A
GLOBAL SECURITY -- (which amount may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary, in accordance with the rules and procedures of the Depositary)] on
May 1, 2018, and to pay interest thereon from May 11, 1998 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semiannually on May 1 and November 1 in each year, commencing November 1,
1998 at the rate of 6.25% per annum, until the principal hereof is paid or made
available for payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth calendar day (whether or not a Business
Day) immediately preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in The
City of New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register. If this Security is a Global
Security, then notwithstanding the foregoing, each such payment will be made in
accordance with the procedures of the Depositary as then in effect.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, including those describing the Call Option and the
Put Option, which further provisions shall for all purposes have the same effect
as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall
19
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AVON PRODUCTS, INC.
By_______________________
Attest:
---------------------------------
SECTION 2.03. Form of Reverse of Security. This Security is one of a
duly authorized issue of Securities of the Company designated as its 6.25%
Putable/Callable Notes due May 1, 2018, Putable/Callable May 1, 2003 (herein
called the "Securities"), limited in aggregate principal amount to $100 million,
issued and to be issued under an Indenture, dated as of May 11, 1998 (herein
called the "Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities will bear interest, payable on each Interest Payment
Date to holders of record on the fifteenth calendar day (whether or not a
Business Day) immediately preceding such Interest Payment Date, at 6.25% per
annum until May 1, 2003 (the "Coupon Reset Date"), whereupon (x) if all of the
Securities are purchased on such date by the Callholder pursuant to its Call
Option, the Securities shall bear interest from and including the Coupon Reset
Date to, but excluding, May 1, 2018 (the "Final Maturity Date") at the Coupon
Reset Rate determined in accordance with the Coupon Reset Process described in
the Indenture, or (y) the Securities shall be redeemed by the Company pursuant
to the exercise of the Put Option by the Trustee on behalf of the Holders of the
Securities.
The Callholder may call the Securities (the "Call Option") by notifying
the Trustee by 4:00 p.m., New York time, on the day that is fifteen calendar
days prior to the Coupon Reset Date of its intention to purchase all, but not
less than all, of the Securities at a price equal to 100% of the principal
amount of
20
the Securities on the Coupon Reset Date. If the Call Option terminates
in accordance with the terms of the Indenture, then the Trustee is obliged,
without any further action by any holder of Securities or any owner of any
beneficial interest therein, to exercise on behalf of such Holders their right
to require the Company to repurchase the Securities at a price equal to 100% of
the principal amount of the Securities on the Coupon Reset Date (the "Put
Option").
Except for the exercise of the Call Option and/or the Put Option, the
Securities are not redeemable prior to maturity and do not have the benefit of a
sinking fund.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- In the event of a deposit
or withdrawal of an interest in this Security, including an exchange, transfer,
repurchase or conversion of this Security in part only, the Trustee, as
custodian of the Depositary, shall make an adjustment on its records to reflect
such deposit or withdrawal in accordance with the rules and procedures of the
Depositary.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as
amended, upon the request of a Holder of a Restricted Security, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder of Restricted Securities, or to a prospective purchaser of
any such security designated by any such Holder, to the extent required to
permit compliance by any such Holder with Rule l44A under the Securities Act of
1933, as amended (the "Securities Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).]
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time, upon
compliance with certain conditions set forth therein, of (i) the entire
Indebtedness evidenced by this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less
21
than a majority in aggregate principal amount of the Outstanding Securities;
provided that no amendment, modification or waiver of the Indenture which
materially adversely affects the interests of the Callholder may be made without
the Callholder's prior written consent. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Outstanding Securities, on behalf of the Holders of all the Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Outstanding Securities a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
22
The Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple of $1,000 above that amount.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
23
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to:
================================================================================
(Print or type name, address and zip code and social
security or tax ID number of assignee)
and irrevocably appoint__________________________________, agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: _________________ Signed:_____________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: _______________________________
In connection with any transfer of this Security occurring prior to May
11, 2000, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
this Security is being transferred:
[Check One]
(1) [ ] to the Company or a subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule l44A under the
Securities Act; or
(3) [ ] outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act; or
(4) [ ] pursuant to the exemption from registration provided by
Rule 144 under the Securities Act; or
24
(5) [ ] pursuant to an effective registration statement under
the Securities Act; or
(6) [ ] pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof; provided that if box (3), (4) or (6)
is checked, the Company may require, prior to registering any such transfer of
the Securities, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (3) or (4)) and other
information as the Company may reasonably request to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Security
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.12 of the Indenture
shall have been satisfied.
Date: _________________ Signed:_____________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee: _______________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule l44A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule l44A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: _________________ Signed:_____________________________]
25
NOTICE: To be executed by an executive officer.
SECTION 2.04. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By______________________________
Authorized Officer
SECTION 2.05. Legend on Restricted Securities. During the period
beginning on May 11, 1998 and ending on the date two years from such date, any
Security including any Security issued in exchange therefor or in lieu thereof,
shall be deemed a "Restricted Security" and shall be subject to the restrictions
on transfer provided in the legends set forth on the face of the form of
Security in Section 2.02; provided, however, that the term "Restricted Security"
shall not include any Securities as to which restrictions have been terminated
in accordance with Section 3.05. All Securities shall bear the applicable
legends set forth on the face of the form of Security in Section 2.02. Except as
provided in Section 3.05 and Section 3.12, the Trustee shall not issue any
unlegended Security until it has received an Officers' Certificate from the
Company directing it to do so.
ARTICLE 3
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $100 million, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 3.04, 3.05, 3.06 or 9.06.
The Securities shall be known and designated as the "6.25%
Putable/Callable Notes due May 1, 2018, Putable/Callable May 1, 2003" of the
Company. Their Stated Maturity shall be May 1, 2018, and they shall bear
interest at the rate of 6.25% per annum, from May 11, 1998 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, payable semiannually on May 1 and November 1,
26
commencing November 1, 1998 until the Coupon Reset Date, whereupon (x) if the
Notes are purchased by the Callholder pursuant to its Call Option on the Coupon
Reset Date, the Notes shall bear interest from the Coupon Reset Date to the
Final Maturity Date at the Coupon Reset Rate determined in accordance with the
Coupon Reset Process described in Section 12.04, payable semi-annually on May 1
and November 1,commencing on November 1, 2003, or (y) the Notes shall be
redeemed by the Company pursuant to the exercise of the Put Option by the
Trustee on behalf of the Holders of the Notes.
The principal of and interest on the Securities shall be payable at the
office or agency of the Company in The City of New York maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by wire transfer or by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Except for the exercise of the Call Option or the Put Option, the
Securities shall not be redeemable prior to maturity and shall not have the
benefit of a sinking fund.
The Securities shall not be superior in right of payment to, and shall
rank pari passu with, all other unsecured and unsubordinated Indebtedness of the
Company.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Eleven and they shall be subject to an assignable
Call Option and to a Put Option to be exercised under certain conditions by the
Trustee for and on behalf of the Holders as provided in Article Twelve.
SECTION 3.02. Denominations. The Securities shall be issuable only in
registered form without coupons and in denominations of $100,000 and any
integral multiple of $l,000 above that amount.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
27
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities. The Company Order shall specify
the amount of Securities to be authenticated and shall specify the amount of the
Securities to be issued as a Global Security. The Trustee in accordance with
such Company Order shall authenticate and deliver the Securities as in this
Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
28
SECTION 3.05. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer. (a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section
10.02 being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 10.02 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount and tenor each such Security bearing such restrictive legends as may be
required by this Indenture (including Sections 2.02 and 3.12).
At the option of the Holder and subject to the other provisions of this
Section 3.05 and to Section 3.12, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing. As a condition to the
registration of transfer of any Restricted Securities, the Company or the
Trustee may require evidence satisfactory to them as to the compliance with the
restrictions set forth in the legend on such securities.
Except as provided in the following sentence and in Section 3.12, all
Securities originally issued hereunder and all Securities issued upon
registration of transfer or exchange or replacement thereof shall be Restricted
Securities and
29
shall bear the legend required by Sections 2.02 and 2.05, unless the Company
shall have delivered to the Trustee (and the Security Registrar, if other than
the Trustee) a Company Order stating that the Security is not a Restricted
Security and may be issued without such legend thereon. Securities which are
issued upon registration of transfer of, or in exchange for, Securities which
are not Restricted Securities shall not be Restricted Securities and shall not
bear such legend.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04 or 9.06 not involving any transfer.
(b) Beneficial ownership of every Restricted Security shall be subject
to the restrictions on transfer provided in the legends required to be set forth
on the face of each Restricted Security pursuant to Sections 2.02 and 2.05,
unless such restrictions on transfer shall be terminated in accordance with this
Section 3.05(b) or Section 3.12. The Holder of each Restricted Security, by such
Holder's acceptance thereof, agrees to be bound by such restrictions on
transfer.
The restrictions imposed by this Section 3.05 and Sections 2.02, 2.05
and 3.12 upon the transferability of any particular Restricted Security shall
cease and terminate upon delivery by the Company to the Trustee of an Officers'
Certificate stating that such Restricted Security has been sold pursuant to an
effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto). Any Restricted Security as to which the Company has delivered to the
Trustee an Officers' Certificate that such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon
surrender of such Restricted Security for exchange to the Security Registrar in
accordance with the provisions of this Section 3.05, be exchanged for a new
Security, of like tenor and aggregate principal amount, which shall not bear the
restrictive legends required by Sections 2.02 and 2.05. The Company shall inform
the Trustee in writing of the effective date of any registration statement
registering the Securities under the Securities Act. The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned registration statement.
As used in the preceding two paragraphs of this Section 3.05, the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Security.
30
(c) Neither the Trustee nor any of its agents shall (1) have any duty
to monitor compliance with or with respect to any federal or state or other
securities or tax laws or (2) have any duty to obtain documentation on any
transfers or exchanges other than as specifically required hereunder.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indenmity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or
31
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
32
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Book-entry Provisions for Global Securities. (a) The
Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee
as custodian for the Depositary and (iii) bear legends as set forth on the face
of the form of Security in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of any Holder.
(b) Transfers of the Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be transferred
33
or exchanged, in whole or in part, for certificated Securities in accordance
with the rules and procedures of the Depositary and the provisions of Section
3.12. In addition, certificated Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global
Securities if (A) such Depositary has notified the Company (or the Company
becomes aware) that the Depositary (i) is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act when the Depositary is required to be so
registered to act as such Depositary and, in both such cases, no successor
Depositary shall have been appointed within 90 days of such notification or of
the Company becoming aware of such event, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security and the
Outstanding Securities shall have become due and payable pursuant to Section
5.02 and the Trustee has requested that certificated Securities be issued or (C)
the Company has decided to discontinue use of book-entry transfers through the
Depositary (or a successor Depositary); provided that Holders of Securities in
the form of permanent certificated Securities in registered form shall have the
right, subject to applicable law, to request that such Securities be exchanged
for interests in the Global Security.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more certificated
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more certificated Securities of like tenor and amount.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
the Global Security, an equal aggregate principal amount of certificated
Securities of authorized denominations.
(e) Any certificated Security constituting a Restricted Security
delivered in exchange for an interest in the Global Security pursuant to
paragraph (c) or (d) shall, except if the requested transfer is after May 11,
2000, bear the legend regarding transfer restrictions applicable to the
certificated Securities set forth on the face of the form of Security in Section
2.02.
34
(f) The Holder of the Global Securities may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 3.10. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Trustee shall cancel
and destroy all Securities surrendered for registration of transfer, exchange,
payment or cancellation and shall deliver certificates of destruction to the
Company, all in accordance with its customary practices. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to
the Trustee for cancellation.
SECTION 3.11. Computation of Interest. Interest on the Securities shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.12. Special Transfer Provisions. (a) Transfers to QIBs. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security constituting a Restricted Security to a QIB:
(i) the Security Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Security stating, or
has otherwise advised the Company and the Security Registrar in
writing, that the sale has been made in compliance with the
provisions of Rule l44A to a transferee who has signed the
certification provided for on the form of Security stating, or
has otherwise advised the Company and the Security Registrar in
writing, that it is purchasing the Security for its own account
or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the
meaning of Rule l44A, and is aware that the sale to it is being
made in reliance on Rule l44A and acknowledges that it has
received such information regarding the Company as it has
requested pursuant to Rule l44A or has determined not to request
such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule l44A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of certificated Securities
which after transfer are to be evidenced by an interest in the
Global Security, upon
35
receipt by the Security Registrar of instructions given in
accordance with the Depositary's and the Security Registrar's
procedures, the Security Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
Global Security in an amount equal to the principal amount of the
certificated Securities to be transferred, and the Trustee shall
cancel the certificated Securities so transferred.
(b) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the legends required by
Sections 2.02 and 2.05, the Security Registrar shall deliver Securities that do
not bear such legends. Upon the registration of transfer, exchange or
replacement of Securities bearing the legends required by Sections 2.02 and
2.05, the Security Registrar shall deliver only Securities that bear such
legends unless (i) the requested transfer is after May 11, 2000 or (ii) there is
delivered to the Security Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(c) General. By its acceptance of any Security bearing the legends
required by Sections 2.02 and 2.05, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this Indenture and in
such legends and agrees that it will transfer such Security only as provided in
this Indenture.
The Security Registrar shall retain, in accordance with its customary
procedures, copies of all letters, notices and other written communications
received pursuant to this Section 3.12. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Security Registrar.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
36
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.06 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year,
and the Company, in the case of (i) or (ii) above, has deposited
or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness evidenced by such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
37
SECTION 4.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with
the Trustee.
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when
it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of any Security at
its Maturity; or
(3) default in the performance of any covenant, agreement or
condition of the Company in this Indenture or the Securities, and
continuance of such default for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(4) a default under any bond, debenture, note or other evidence
of Indebtedness for money borrowed by the Company, whether such
Indebtedness now exists or shall hereafter be created, which default
shall constitute a failure to pay the principal (or premium, if any) of
Indebtedness having an aggregate principal amount outstanding of at
least $50 million when due and payable after the expiration of any
applicable
38
grace period with respect thereto or shall have resulted in such
Indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such Indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 30 days after there
shall have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities a written
notice specifying such default and requiring the Company to cause such
Indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions
of Sections 6.01 and 6.02, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of
the Trustee shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company,
from any Holder or from the holder of or trustee in respect of any such
Indebtedness; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
39
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than those specified in Sections 5.01(5) and 5.01(6))
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities may
declare the principal of all the Securities to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal shall become immediately due and
payable.
Notwithstanding the foregoing, in the case of an Event of Default
specified in Sections 5.01(5) or 5.01(6), all Outstanding Securities will ipso
facto become due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 6.07;
40
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03. Collection of lndebtedness and Suits for Enforcement
by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion, subject to applicable law,
proceed to protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be
41
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively.
42
SECTION 5.07. Limitation on Suits. No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 3.07) interest on
such Security on the respective Stated Maturities expressed in such Security and
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then
43
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities 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 that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of or interest on any
Security,
or
44
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, in either case in respect to the
Securities of any series, a court may require any party litigant in such suit to
file an undertaking to pay the costs of the suit, and the court may assess
reasonable costs, including reasonable attorney's fees, against any party
litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or interest on any
Security on or after the maturity of such Security.
SECTION 5.15. 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.
SECTION 5.16. Notice to the Callholder of an Event of Default. The
Company shall give prompt notice to the Callholder if an Event of Default shall
have occurred.
45
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 5.01(3), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors of the Company may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
46
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or
Event of Default (except as provided in Section 5.01(4)) with respect to the
Securities unless either (i) a Responsible Officer shall have actual knowledge
of such Default or Event of Default or (ii) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any
other obligor on such Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered 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.
SECTION 6.04. Not Responsible for Recitals. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
47
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section 6.07 shall survive
the satisfaction and discharge of this Indenture. To secure the Company's
payment obligations in this Section 6.07, the Trustee shall have a Lien prior to
the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal and interest on the Securities. Such Lien
shall survive the satisfaction and discharge of this Indenture. When the Trustee
incurs expenses or renders services after a Default or an Event of Default
specified in Section 5.01(5) or 5.01(6) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are
48
intended to constitute expenses of administration under U.S. Code, Title 11 or
any other similar foreign, federal or state law for the relief of debtors.
SECTION 6.08. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
49
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Company Order may remove
the Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Company Order, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.06. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring
50
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against. If and when
the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company (or
any such other obligor).
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
51
(a) semiannually, not more than 15 days after each Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar; provided, however, that no such
list need be furnished so long as the Trustee is acting as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. Reports so required to be transmitted at
stated intervals of not more than 12 months shall be transmitted no later than
January 31, in each calendar year, commencing in January, 1999.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
52
SECTION 7.04. Reports by Company. The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission. In the event the Company is not subject to Section
13 or 15(d) of the Exchange Act, it shall file with the Trustee upon request the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any Indebtedness which becomes an obligation of the Company as
a result of such transaction as having been incurred by the Company at
the
53
time of such transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article.
SECTION 8.02. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURE
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders or the Callholder, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of
the Holders; or
54
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the
provisions of this Indenture;
provided that such action pursuant to this Clause (4) shall not
adversely affect the interests of the Holders or the rights of the Callholder
hereunder in any material respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or change the place of payment
where, or the coin or currency in which, any Security or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.11, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby;
55
provided, further, that no such supplemental indenture shall modify, amend or
eliminate any provision in a way which materially adversely affects the interest
of the Callholder without the prior written consent of the Callholder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, in addition to the documents
required by Section 1.02, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
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ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal and Interest. The Company shall
duly and punctually pay the principal of and interest on the Securities in
accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 10.03. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of the principal of or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as
57
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be repaid to the Company.
SECTION 10.04. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers' Certificate, stating whether
or not to the best knowledge of the signers thereof the Company is in default in
the
58
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 10.05. Existence. Subject to Article Eight, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors of the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.06. Liens. The Company shall not, and shall not permit any
Subsidiary to issue, assume, incur or guarantee any Indebtedness secured by a
Lien, except Permitted Liens, on any Principal Property or any shares of Capital
Stock of any Subsidiary ("Secured Debt"), without at the same time effectively
providing that the Securities shall be secured equally and ratably with (or
prior to) the Indebtedness so secured for so long as such Indebtedness is so
secured, unless after giving effect thereto, the aggregate amount of Secured
Debt, together with all Attributable Debt of the Company and its Subsidiaries in
respect of Restricted Sale/Leaseback Transactions would not exceed 20% of
Consolidated Net Tangible Assets.
SECTION 10.07. Limitation on Restricted Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Subsidiary to, enter into,
assume, guarantee or otherwise become liable with respect to any Restricted
Sale/Leaseback Transaction, unless after giving effect thereto the aggregate
amount of Attributable Debt of the Company and its Subsidiaries in respect of
Restricted Sale/Leaseback Transactions, together (without duplication) with all
Secured Debt then outstanding, would not exceed 20% of Consolidated Net Tangible
Assets.
SECTION 10.08. Reports and Delivery of Certain Information. Whether or
not required by the rules and regulations of the Commission, so long as any
Securities are outstanding, the Company shall furnish to the Holders of the
Securities (i) all quarterly and annual financial information that is
substantially equivalent to that which would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if the Company were required
to file such Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section and, with respect to the
annual information only, a report thereon by the Company's certified independent
59
accountants and (ii) all reports that are substantially equivalent to that which
would be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports. In addition, whether or not required by the
rules and regulations of the Commission, the Company shall file a copy of all
such information with the Commission for public availability (unless the
Commission will not accept such a filing) and make such information available to
investors who request it in writing. So long as any of the Securities remain
Outstanding, the Company shall make available to any prospective purchaser of
Securities or beneficial owner of Securities in connection with any sale thereof
the information required by Rule 144A(d)(4) under the Securities Act, until such
time as the Company has either exchanged the Securities for securities identical
in all material respects which have been registered under the Securities Act or
until such time as the Holders thereof have disposed of such Securities pursuant
to an effective registration statement under the Securities Act.
SECTION 10.09. Resale of Certain Securities. During the period
beginning on the Issue Date and ending on the date that is two years from the
Issue Date, the Company shall not, and shall not permit any of its "affiliates"
(as defined under Rule 144 under the Securities Act or any successor provision
thereto) to, resell any Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them. The Trustee shall have
no responsibility in respect of the Company's performance of its agreement in
the preceding sentence.
SECTION 10.10. Book-Entry System. If the Securities cease to trade in
the Depositary's book-entry settlement system, the Company covenants and agrees
that it shall use reasonable efforts to make such other book-entry arrangements
that it determines are reasonable for the Securities.
SECTION 10.11. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 10.06 and 10.07 if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities shall, by
Act of such Holders, either Waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
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ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may elect, at its option at any time, to have Section
11.02 or Section 11.03 applied to the Outstanding Securities upon compliance
with the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution.
SECTION 11.02. Defeasance and Discharge. Upon the Company's exercise of
its option (if any) to have this Section applied to the Outstanding Securities,
the Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 11.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 11.04 and
as more fully set forth in such Section, payments in respect of the principal of
and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 3.04, 3.05, 3.06,
10.02 and 10.03, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this Section applied to the
Outstanding Securities notwithstanding the prior exercise of its option (if any)
to have Section 11.03 applied to such Securities.
SECTION 11.03. Covenant Defeasance. Upon the Company's exercise of its
option (if any) to have this Section applied to any Securities, (1) the Company
shall be released from its obligations under Sections 10.06 through 10.08,
inclusive and (2) the occurrence of any event specified in Sections 5.01(3)
(with respect to any of Sections 10.06 through 10.08, inclusive) or 5.01(4)
shall be deemed not to be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 11.04 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section
61
(to the extent so specified in the case of Section 5.01(3)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of Section 11.02 or Section
11.03 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and interest on such Securities on the
respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security which is (i) a direct obligation of
the United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii) an
obligation 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 (i)
or (ii), is not callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above and
held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and
held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in
respect of the U.S.
62
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 11.02 apply to
such Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance
and discharge were not to occur.
(3) In the event of an election to have Section 11.03 apply to
such Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities shall
have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 5.01(5) and 5.01(6), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement
63
or instrument to which the Company is a party or by which the Company
is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
SECTION 11.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.03, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 11.06, the Trustee and any such
other trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 in respect of the Outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and interest, but money so held in trust need
not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 11.04
with respect to the Outstanding Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such Securities.
64
SECTION 11.06. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article with respect to the
Outstanding Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 11.02 or
11.03 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to
Section 11.05 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or
interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
ARTICLE 12
CALL AND PUT OPTIONS
SECTION 12.01. Call Option. (a) The Company (or its successors or
assigns) shall have the right to purchase the Securities from the Holders on the
Coupon Reset Date, in whole but not in part (the "Call Option"), in exchange for
an amount equal to the Call Price. The Company, as holder of the Call Option, or
any Person to whom the Call Option is assigned in accordance with subsection (d)
below, is referred to herein as the "Callholder".
If the Callholder exercises its rights under the Call Option in
accordance with Section 12.01(b) hereof, then
(i) subject to Section 12.05, not later than 9:00 a.m., New York
time, on the Business Day prior to the Coupon Reset Date, the
Callholder shall deliver an amount equal to the Call Price in U.S.
Dollars in immediately available funds to the Trustee for payment of
the Call Price on the Coupon Reset Date;
(ii) if the Callholder is not the Company, promptly upon delivery
by the Callholder of the Call Price to the Trustee (and in no event
later than 9:00 a.m. on the Business Day prior to the Coupon Reset
Date), the Trustee shall notify the Company of such delivery of and
receipt of the Call Price; and
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(iii) the Holders of the Securities shall be required to deliver
the Securities to the Callholder against payment therefor on the Coupon
Reset Date.
If the Call Option has not been exercised, or in the event the Callholder is not
required or fails to deliver the Call Price to the Trustee at or prior to 9:00
a.m., New York time, on the Business Day prior to the Coupon Reset Date, the
Trustee shall give notice of such occurrence to the Company.
(b) The Callholder must, in order to exercise its rights under the Call
Option, deliver irrevocable, written notice (the "Call Notice") to the Company
(unless the Company shall be the Callholder) and to the Trustee of its exercise
of the Call Option prior to 4:00 p.m., New York time, on the day that is fifteen
(15) calendar days prior to the Coupon Reset Date. The Call Notice shall contain
the requisite delivery details, including the identification of the Callholder's
Depositary account. The Trustee shall send a copy of the Call Notice to the
Holders of the Securities no later than the immediately succeeding Business Day.
No Holder of Securities shall have any rights or claims against the Callholder
as a result of the Callholder electing to purchase or not purchase the
Securities.
(c) If the Callholder elects to exercise the Call Option, the
obligation of the Callholder to pay the Call Price and the corresponding
obligation of the Trustee to deliver the Securities to the Callholder pursuant
to exercise of the Call Option is subject to the following conditions precedent
that, after the Call Notice is given:
(i) (x) no Event of Default with respect to the Securities or (y)
no (A) event of Default with respect to any senior indebtedness of the
Company other than the Securities (as such event of default is defined
in any notes, indenture, credit agreement, or other similar document
relating to such senior indebtedness) which shall have resulted in such
senior indebtedness becoming due and payable under such document before
it would otherwise have been due and payable or (B) a default in making
a payment on the due date thereof under documents relating to senior
indebtedness (after giving effect to any applicable notice requirement
or grace period) shall have occurred; provided that the aggregate
amount relating to the events specified in clause (A) and (B) hereof is
not less than $50,000,000;
(ii) and until 9:00 a.m. New York time, on the Business Day prior
to the Coupon Reset Date, no Market Disruption Event shall have
occurred;
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(iii) at least three Dealers shall have provided timely Bids in
the manner provided in Section 12.04 hereof;
(iv) no legal defeasance or covenant defeasance with respect to
the Securities shall have occurred; and
(v) none of the Securities shall have been purchased by the
Company.
The Call Option will automatically and immediately terminate without
any further action by the Callholder, Company or Trustee, and the Trustee will
exercise the Put Option pursuant to Section 12.02 on behalf of the Holders, upon
the occurrence of any one or more of the following events:
(i) an Event of Default with respect to the Securities under
Section 5.01(1), (2), (5) or (6) hereof;
(ii) prior to 9:00 a.m. New York time on the Business Day prior
to the Coupon Reset Date, a Market Disruption Event shall have
occurred;
(iii) after the Call Notice is given, at least three Dealers
shall have failed to provide timely Bids in the manner provided in
Section 12.04 hereof; and
(iv) a legal defeasance or covenant defeasance with respect to
the Securities shall have occurred.
The Call Option will immediately terminate upon the election of the
Callholder following the occurrence of any one or more of the following events:
(i) an Event of Default with respect to the Securities under
Section 5.01(3) or (4) hereof;
(ii) (A) an event of default with respect to any senior
indebtedness of the Company other than the Notes (as such event of
default is defined in any notes, indenture, credit agreement, or other
similar document relating to such senior indebtedness) which shall have
resulted in such senior indebtedness becoming due and payable under
such document before it would otherwise have been due and payable or
(B) a default in making a payment on the due date thereof under
documents relating to senior indebtedness (after giving effect to any
applicable notice requirement or grace period) shall have occurred;
provided that the
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aggregate amount relating to the events specified in Clause (A) and (B)
hereof is not less than $50,000,000; and
(iii) any or all of the Securities shall have been purchased by
the Company.
The Company will promptly notify the Trustee in writing of any
termination of the Call Option.
(d) The Callholder may at any time assign its rights and obligations
under the Call Option; provided that (i) such rights and obligations are
assigned in whole and not in part, and (ii) such assigning Callholder provides
the Company (unless the Company is a participant in the assignment) and the
Trustee with written notice of such assignment contemporaneously with such
assignment. Upon receipt of notice of assignment, the Trustee shall treat the
assignee as the Callholder for all purposes hereunder. A Callholder may assign
its rights under the Call Option without notice to, or consent of, the Holders
of the Securities.
SECTION 12.02. Put Option. (a) By its purchase of a Security, each
Holder irrevocably agrees that if either (i) the Call Option has not been
exercised, or (ii) the Callholder is not required, as set forth in Section
12.01(c), or fails to deliver the Call Price to the Trustee not later than 9:00
a.m., New York time, on the Business Day prior to the Coupon Reset Date, the
Trustee shall, for and on behalf of the Holders of the Securities, have the
right to require the Company to purchase the Securities, in whole but not in
part, on the Coupon Reset Date (the "Put Option") at a purchase price equal to
100% of the aggregate principal amount thereof and accrued and unpaid interest
thereon (the "Put Redemption Price"). The Trustee shall be required to exercise
the Put Option, for and on behalf of the Holders, if the Call Option has not
been exercised or in the event the Callholder is not required or fails to
deliver the Call Price to the Trustee when due. If the Put Option is exercised,
the Trustee shall promptly thereafter notify the Holders of the Securities that
the Trustee, on behalf of the Holders, has exercised the Put Option.
(b) If the Trustee exercises the Put Option, then the Company shall
deliver the Put Redemption Price to the Trustee by no later than 12:30 p.m., New
York time, on the Coupon Reset Date, and the Holders of the Securities shall be
required to deliver the Securities to the Company against payment therefor on
the Coupon Reset Date. No Holder of any Securities or any interest therein has
the right to consent or object to the Trustee's exercise of the Put Option.
SECTION 12.03. Calculation Agent. (a) The Company shall appoint a
calculation agent with respect to the Securities (the "Calculation Agent") which
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initially shall be UBS Securities LLC, as acknowledged in the letter attached
hereto as Appendix A.
(b) The Calculation Agent shall incur no liability for, or in respect
of, any action taken, omitted to be taken or suffered by it in such capacity in
reliance upon any certificate, affidavit, instruction, notice, request,
direction, order, statement or other paper, document or communication reasonably
believed by it to be genuine. Any order, certificate, affidavit, instruction,
notice, request, direction, statement or other communication from the Company
made or given by it and sent, delivered or directed to the Calculation Agent
under, pursuant to, or as permitted by, any provision of this Indenture shall be
sufficient for purposes of this Indenture if such communication is in writing
and signed by any officer or attorney-in-fact of the Company. The Calculation
Agent may consult with counsel satisfactory to it, and the advice of such
counsel shall constitute full and complete authorization and protection of such
Calculation Agent with respect to any action taken, omitted to be taken or
suffered by it hereunder in good faith and in accordance with and in reliance
upon the advice of such counsel.
(c) The Calculation Agent, in its individual capacity, may, as if it
were not the Calculation Agent, (i) buy, sell, hold and deal in Securities and
may exercise any vote or join in any action which any Holder of Securities may
be entitled to exercise or take or (ii) engage in any financial or other
transaction with the Company or any of its Affiliates.
(d) In acting in connection with the Securities, the Calculation Agent
shall be obligated only to perform such duties as are specifically set forth
herein, and no other duties or obligations on the part of the Calculation Agent,
in its capacity as such, shall be implied by this Indenture. In acting under
this Indenture, the Calculation Agent in its capacity as such does not assume
any obligation towards, or any relationship of agency or trust for or with the
Holders of the Securities.
(e) The Calculation Agent may resign at any time as Calculation Agent,
such resignation to be effective ten Business Days after the delivery to the
Company and the Trustee of written notice of such resignation. In such case, the
Company shall appoint a successor Calculation Agent. In addition, the Company
may at any time remove the existing Calculation Agent and appoint a successor
Calculation Agent if Reasonable Cause exists at such time by giving written
notice to the existing Calculation Agent and the Trustee and specifying the date
when the termination shall become effective. "Reasonable Cause" shall mean the
failure or inability of the existing Calculation Agent to perform any
obligations it may have hereunder for any reason.
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(f) Any successor Calculation Agent appointed by the Company pursuant
to the provisions of subsection (e) shall execute and deliver to the predecessor
Calculation Agent, the Company and the Trustee an instrument accepting such
appointment and thereupon the successor Calculation Agent shall, without any
further act or instrument, become vested with all the rights, immunities, duties
and obligations of the initial Calculation Agent, with like effect as if
originally named as initial Calculation Agent hereunder, and the predecessor
Calculation Agent shall thereupon be obligated to deliver, and the successor
Calculation Agent shall be entitled to receive, copies of any available records
maintained by the predecessor Calculation Agent in connection with the
performance of its obligations hereunder. The Company shall notify the Trustee
in writing upon any such appointment.
(g) The Company shall indemnify and hold harmless the Calculation Agent
and any successor thereof, and its officers and employees, from and against all
actions, claims, damages, liabilities, losses and reasonable expenses (including
reasonable legal fees and reasonable disbursements) relating to or arising out
of actions or omissions of the Calculation Agent hereunder, except actions,
claims, damages, liabilities, losses and expenses caused by the bad faith, gross
negligence or wilful misconduct of the Calculation Agent or its officers or
employees. This subsection shall survive the termination of the Indenture and
the payment in full of all obligations under the Securities, whether by
redemption, repayment or otherwise.
(h) Notwithstanding any other provision of this Indenture, the parties
hereto acknowledge that (i) the rights and obligations of the Calculation Agent
hereunder are those of the Calculation Agent and its legal successors, and
accordingly that this Indenture will survive any merger of the Calculation Agent
with an affiliate of Swiss Bank Corporation ("SBC") or Union Bank of Switzerland
and (ii) Union Bank of Switzerland and its Affiliates may provide to SBC and its
Affiliates information related to the transactions contemplated hereby or the
other parties to such transactions for purposes related to the effectuation of
the merger of Union Bank of Switzerland and SBC. Any entity into which the
Calculation Agent may be merged, converted or consolidated, or any entity
resulting from any merger, conversion or consolidation to which the Calculation
Agent may be a party, or any entity to which the Calculation Agent may sell or
otherwise transfer all or substantially all of its business, shall, to the
extent permitted by applicable law, automatically succeed the Calculation Agent.
SECTION 12.04. Coupon Reset Process. If the Callholder has exercised
the Call Option, the Company and the Calculation Agent shall complete the
following steps (the "Coupon Reset Process") in order to determine the interest
rate ("Coupon Reset Rate") to be paid on the Securities from, and including the
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Coupon Reset Date to, but excluding, the Final Maturity Date; provided that the
Coupon Reset Process shall be discontinued if, at any time prior to and
including 9:00 a.m., New York time, on the Business Day prior to the Coupon
Reset Date, (i) an event shall have occurred following which the Callholder is
not required to pay the Call Price pursuant to Section 12.01(c) hereof or (ii)
the Call Option shall have terminated pursuant to Section 12.01(c) hereof. The
Company and the Calculation Agent shall use reasonable efforts to cause the
actions described below to be completed in a timely manner.
(i) The Company shall provide the Calculation Agent with a list
(a "Dealer List"), no later than seven Business Days prior to the
Coupon Reset Date, containing the names and addresses of five dealers,
one of which shall be UBS Securities LLC or its successor, from which
it desires the Calculation Agent to obtain the Bids for the purchase of
the Securities.
(ii) Within one Business Day following receipt by the Calculation
Agent of the Dealer List, the Calculation Agent shall provide to each
dealer (a "Dealer") on the Dealer List (a) a copy of the Offering
Memorandum, (b) a copy of the form of the Securities, (c) a written
request that each Dealer submit a Bid to the Calculation Agent at 12:00
noon, New York time (the "Bid Deadline"), on the third Business Day
prior to the Coupon Reset Date (the "Bid Date") and (d) an estimate of
the Purchase Price (which shall be stated as a U.S. Dollar amount and
be calculated by the Calculation Agent in accordance with clause (iii)
below). "Bid" means an irrevocable written offer given by a Dealer for
the purchase of the Securities at the Purchase Price (as defined
herein), such purchase to settle on the Coupon Reset Date, and such
Purchase Price shall be quoted by such Dealer as a stated yield to
maturity on the Securities (the "Yield to Maturity").
(iii) The purchase price to be paid for the Securities by a
Dealer (the "Purchase Price") shall be equal to (x) the aggregate
principal amount of the Securities plus (y) a premium (the "Securities
Premium") which shall be equal to the excess, if any, on the Coupon
Reset Date of (A) the discounted present value to the Coupon Reset Date
of a bond with a maturity of the Final Maturity Date which has an
interest rate of 5.69%, semiannual interest payments on each May 1 and
November 1 commencing November 1, 2003, and a principal amount of
$100,000,000, and which is discounted at a rate equal to the Treasury
Rate over (B) $100,000,000.
"Treasury Rate" means the per annum rate equal to the offer side yield
to maturity of the current on-the-run ten-year United States Treasury Security
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appearing on Telerate page 500, or any successor page, at 11:00 a.m., New York
time, on the Bid Date (or such other date or time that may be agreed upon by the
Company and the Calculation Agent) or, if such rate does not appear on Telerate
page 500, or any successor page, at such time or date, the rate appearing on
GovPx End-of-Day Pricing at 3:00 p.m., New York time, on the Bid Date.
(iv) Immediately after receiving the Bids on the Bid Date, the
Calculation Agent shall provide written notice to the Company, setting
forth (a) the names of each of the Dealers from whom the Calculation
Agent received such Bids on the Bid Date, (b) the Bid submitted by each
such Dealer and (c) the Purchase Price. Except as provided in the first
paragraph of this Section 12.04, on the day that Bids are received by
the Calculation Agent, the Calculation Agent shall select the Bid with
the lowest Yield to Maturity (the "Selected Bid") from the Bids
received by the Bid Deadline, provided, that at least three Bids are
properly received in a timely manner, and establish the Coupon Reset
Rate (the "Coupon Reset Rate") equal to the interest rate which would
amortize the Securities Premium fully over the remaining term of the
Securities at the Yield to Maturity indicated by the Selected Bid;
provided, however, that if any two or more of the lowest Bids submitted
are equivalent, the Company shall in its sole discretion select any of
such equivalent Bids (and such Bid selected shall be the Selected Bid).
(v) Immediately after calculating the Coupon Reset Rate, the
Calculation Agent shall provide written notice to the Company and the
Trustee, setting forth such Coupon Reset Rate.
(vi) The Company shall thereafter establish the Coupon Reset Rate
as the new interest rate on the Securities, effective from and
including the Coupon Reset Date to, but not including, the Final
Maturity Date, by delivery to the Trustee on or before the Coupon Reset
Date of an Officer's Certificate setting forth such Coupon Reset Rate.
(vii) The Callholder shall sell the Securities to the Dealer that
made the Selected Bid at the Purchase Price, such sale to be settled on
the Coupon Reset Date in immediately available funds.
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SECTION 12.05. The Company as Callholder. If the Company becomes the
Callholder subsequent to an exercise of the Call Option, the Company, so long as
it shall be the Callholder,
(a) shall have no obligation (i) to initiate, participate in or
conclude, as the case may be, the Coupon Reset Process or (ii) to pay the Call
Price by 9:00 a.m. on the Business Day prior to the Coupon Reset Date; and
(b) if the Company does not pay the Call Price by 9:00 a.m. on the
Business Day prior to the Coupon Reset Date, the Trustee shall exercise the Put
Option pursuant to Section 12.02 on behalf of the Holders.
SECTION 12.06. Third Party Beneficiaries. Each of the Callholder and
the Calculation Agent shall be a third party beneficiary of this Indenture and
may enforce the obligations of the Company and of the Trustee hereunder running
in favor of the Callholder and the Calculation Agent, as applicable.
---------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AVON PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Second Vice President
May 11, 1998
Acknowledgment
--------------
Avon Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Global Trust Services
Ladies and Gentlemen:
Reference is made to the Indenture dated as of May 11, 1998 (the
"Indenture") between Avon Products, Inc., a New York corporation, and The Chase
Manhattan Bank, a banking corporation duly organized under the laws of the State
of New York, as Trustee, in connection with the offering of $100,000,000
aggregate principal amount of 6.25% Putable/Callable Notes due May 1, 2018,
Putable/Callable May 1, 2003. Capitalized terms used but not defined herein
shall have the meaning given to such terms in the Indenture.
The undersigned hereby acknowledges its obligations as Calculation
Agent under Article 12 of the Indenture. The acknowledgment shall be binding
upon any Persons who are successors to the Calculation Agent
Very truly yours,
UBS Securities LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Appendix B
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Form of Put Notice to be Delivered by the Trustee
to the Company Upon Exercise of the Put Option
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Avon Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
The Chase Manhattan Bank, as Trustee for Avon Products, Inc.'s
$100 million aggregate principal amount of 6.25% Putable/Callable Notes due May
1, 2018, Putable/Callable May 1, 2003, issued under the Indenture dated as of
May 11, 1998, (the "Indenture") hereby gives notice of exercise of the Put
Option (as defined in the Indenture) pursuant to Section 12.02 of the Indenture.
The Chase Manhattan Bank
________________________________
Authorized Officer
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