KELLWOOD COMPANY,
ISSUER
INDENTURE
DATED AS OF ___________________
________________________
TRUSTEE
PROVIDING FOR THE ISSUANCE OF
SUBORDINATED DEBT SECURITIES IN SERIES
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) NA
(a)(4) NA
(b) 7.8, 7.10, 14.2
(c) NA
311(a) 7.11
(b) 7.11
(c) NA
312(a) 2.4
(b) 14.3
(c) 14.3
313(a) 7.6
(b)(1) NA
(b)(2) 7.6
(c) 7.6, 14.2
(d) 7.6
314(a) 4.4, 14.2
(b) NA
(c)(1) 14.4
(c)(2) 14.4
(c)(3) NA
(d) NA
(e) 14.5
(f) NA
315(a) 7.1(b)
(b) 7.5, 10.2
(c) 7.1(a)
(d) 7.1(c)
(e) 6.11
316(a)(last sentence) 2.8
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) NA
(b) 6.7
317(a)(1) 6.8
(a)(2) 6.9
(b) 4.3
318(a) 14.1
N.A. means not applicable.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 OTHER DEFINITIONS. . . . . . . . . . . . . . . . . . . . . 9
Section 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Section 1.4 RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . .11
ARTICLE II
THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.1 TERMS AND FORMS. . . . . . . . . . . . . . . . . . . . . .11
Section 2.2 EXECUTION AND AUTHENTICATION.. . . . . . . . . . . . . . .15
Section 2.3 REGISTRAR, PAYING AGENT, CONVERSION AGENT, DEPOSITORY
AND SECURITIES CUSTODIAN. . . . . . . . . . . . . . . . . 17
Section 2.4 SECURITYHOLDER LISTS.. . . . . . . . . . . . . . . . . . .18
Section 2.5 TRANSFER, REGISTRATION AND EXCHANGE. . . . . . . . . . . .18
Section 2.6 REPLACEMENT SECURITIES.. . . . . . . . . . . . . . . . . .20
Section 2.7 OUTSTANDING SECURITIES.. . . . . . . . . . . . . . . . . .21
Section 2.8 TREASURY SECURITIES. . . . . . . . . . . . . . . . . . . .22
Section 2.9 TEMPORARY SECURITIES.. . . . . . . . . . . . . . . . . . .23
Section 2.10 SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . . . .23
Section 2.11 CANCELLATION.. . . . . . . . . . . . . . . . . . . . . . .23
Section 2.12 DEFAULTED INTEREST.. . . . . . . . . . . . . . . . . . . .23
Section 2.13 PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . .24
ARTICLE III
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 3.1 APPLICABILITY OF ARTICLE.. . . . . . . . . . . . . . . . .25
Section 3.2 NOTICES TO TRUSTEE.. . . . . . . . . . . . . . . . . . . .25
Section 3.3 SELECTION OF SECURITIES TO BE REDEEMED.. . . . . . . . . .25
Section 3.4 NOTICE OF REDEMPTION.. . . . . . . . . . . . . . . . . . .26
Section 3.5 EFFECT OF NOTICE OF REDEMPTION.. . . . . . . . . . . . . .27
Section 3.6 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . .28
Section 3.7 SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . .28
ARTICLE IV
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Section 4.1 PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . .29
Section 4.2 MAINTENANCE OF OFFICE OR AGENCY FOR NOTICES
AND DEMANDS.. . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.4 COMMISSION REPORTS; REPORTS TO TRUSTEE; REPORTS
TO HOLDERS.. . . . . . . . . . . . . . . . . . . . . . . .32
Section 4.5 COMPLIANCE CERTIFICATES. . . . . . . . . . . . . . . . . .33
Section 4.6 CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . .33
Section 4.7 LIMITATION ON LIENS. . . . . . . . . . . . . . . . . . . .33
Section 4.8 LIMITATIONS ON SALE AND LEASE-BACK
TRANSACTIONS. . . . . . . . . . . . . . . . . . . . . . . 33
Section 4.9 EXEMPTED INDEBTEDNESS. . . . . . . . . . . . . . . . . . .34
Section 4.10 WAIVER OF STAY; EXTENSION OF USURY LAWS. . . . . . . . . .34
ARTICLE V
SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.1 WHEN COMPANY MAY MERGE, ETC. . . . . . . . . . . . . . . .35
Section 5.2 SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . .35
ARTICLE VI
DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . .36
Section 6.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . .36
Section 6.2 ACCELERATION.. . . . . . . . . . . . . . . . . . . . . . .37
Section 6.3 OTHER REMEDIES.. . . . . . . . . . . . . . . . . . . . . .38
Section 6.4 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . .38
Section 6.5 CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . .38
Section 6.6 LIMITATION ON SUITS BY HOLDERS.. . . . . . . . . . . . . .38
Section 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.. . . . . . . . . . .39
Section 6.8 COLLECTION SUIT BY TRUSTEE.. . . . . . . . . . . . . . . .39
Section 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.. . . . . . . . . . . . .39
Section 6.10 APPLICATION OF MONEY COLLECTED.. . . . . . . . . . . . . .40
Section 6.11 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . .41
Section 6.12 DISCONTINUANCE OR ABANDONMENT OF PROCEEDINGS.. . . . . . .41
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 7.1 DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . .41
ii
Section 7.2 RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . .43
Section 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.. . . . . . . . . . . . . . .43
Section 7.4 TRUSTEE'S DISCLAIMER.. . . . . . . . . . . . . . . . . . .44
Section 7.5 NOTICE OF DEFAULTS.. . . . . . . . . . . . . . . . . . . .44
Section 7.6 REPORTS BY TRUSTEE TO HOLDERS. . . . . . . . . . . . . . .44
Section 7.7 COMPENSATION AND INDEMNITY.. . . . . . . . . . . . . . . .44
Section 7.8 REPLACEMENT OF TRUSTEE.. . . . . . . . . . . . . . . . . .45
Section 7.9 SUCCESSOR TRUSTEE BY MERGER. . . . . . . . . . . . . . . .46
Section 7.10 ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . .46
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE . . . . . . . . . . . . . . . . . . .47
Section 8.1 DISCHARGE OF INDENTURE; DEFEASANCE.. . . . . . . . . . . .47
Section 8.2 CONDITIONS TO DEFEASANCE.. . . . . . . . . . . . . . . . .47
Section 8.3 APPLICATION OF TRUST MONEY.. . . . . . . . . . . . . . . .49
Section 8.4 REPAYMENT TO COMPANY.. . . . . . . . . . . . . . . . . . .49
Section 8.5 REINSTATEMENT OF COMPANY'S OBLIGATIONS.. . . . . . . . . .50
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1 WITHOUT CONSENT OF HOLDERS . . . . . . . . . . . . . . . .50
Section 9.2 WITH CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . .51
Section 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . .52
Section 9.4 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. . . . . . .52
Section 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . .53
Section 9.6 TRUSTEE TO SIGN AMENDMENTS.. . . . . . . . . . . . . . . .53
ARTICLE X
REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . . . . . . . . . . 53
Section 10.1 APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . .53
ARTICLE XI
SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
Section 11.1 APPLICABILITY OF ARTICLE.. . . . . . . . . . . . . . . . .54
Section 11.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . 54
Section 11.3 REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . . . .55
ARTICLE XII
CONVERSION OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.1 APPLICABILITY OF ARTICLE.. . . . . . . . . . . . . . . . .55
Section 12.2 EXERCISE OF CONVERSION PRIVILEGE.. . . . . . . . . . . . .56
Section 12.3 FRACTIONAL INTERESTS.. . . . . . . . . . . . . . . . . . .57
Section 12.4 ADJUSTMENT OF CONVERSION PRICE.. . . . . . . . . . . . . .58
Section 12.5 CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF
MERGER, CONSOLIDATION OR SALE OF ASSETS. . . . . . . . . .60
Section 12.6 NOTICE OF CERTAIN EVENTS.. . . . . . . . . . . . . . . . .61
Section 12.7 TAXES ON CONVERSION. . . . . . . . . . . . . . . . . . . .62
Section 12.8 COMPANY TO PROVIDE STOCK.. . . . . . . . . . . . . . . . .62
Section 12.9 DISCLAIMER OF RESPONSIBILITY FOR CERTAIN
MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 12.10 RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF
CONVERTED SECURITIES. . . . . . . . . . . . . . . . . . . 63
Section 12.11 RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED
UPON CONVERSION. . . . . . . . . . . . . . . . . . . . . .64
ARTICLE XIII
SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
Section 13.1 SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.. . . . . .64
Section 13.2 RELIANCE ON CERTIFICATE OF LIQUIDATING AGENT;
FURTHER EVIDENCE AS TO OWNERSHIP OF SENIOR
INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . 67
Section 13.3 PAYMENT PERMITTED IF NO DEFAULT. . . . . . . . . . . . . .67
Section 13.4 DISPUTES WITH HOLDERS OF CERTAIN SENIOR
INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . 67
Section 13.5 TRUSTEE NOT CHARGED WITH KNOWLEDGE OF
PROHIBITION . . . . . . . . . . . . . . . . . . . . . . . 68
Section 13.6 TRUSTEE TO EFFECTUATE SUBORDINATION. . . . . . . . . . . .68
Section 13.7 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . .69
Section 13.8 ARTICLE APPLICABLE TO PAYING AGENTS. . . . . . . . . . . .69
Section 13.9 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS-
OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR
INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . 69
Section 13.10 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . .69
ARTICLE XIV
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
iv
Section 14.1 TRUST INDENTURE ACT CONTROLS.. . . . . . . . . . . . . . .70
Section 14.2 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . .70
Section 14.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. . . . . . . .71
Section 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. . . . . . .71
Section 14.6 RULES BY TRUSTEE AND AGENTS. . . . . . . . . . . . . . . .72
Section 14.7 LEGAL HOLIDAYS.. . . . . . . . . . . . . . . . . . . . . .72
Section 14.8 NO RECOURSE AGAINST OTHERS.. . . . . . . . . . . . . . . .72
Section 14.9 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . .73
Section 14.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. . . . . . .73
Section 14.11 SUCCESSORS.. . . . . . . . . . . . . . . . . . . . . . . .73
Section 14.12 SEVERABILITY.. . . . . . . . . . . . . . . . . . . . . . .73
Section 14.13 MULTIPLE ORIGINALS.. . . . . . . . . . . . . . . . . . . .73
Section 14.14 TABLE OF CONTENTS; HEADINGS. . . . . . . . . . . . . . . .73
Section 14.15 SECURITIES IN FOREIGN CURRENCIES.. . . . . . . . . . . . .73
v
INDENTURE dated as of __________________ between KELLWOOD COMPANY, a
Delaware corporation (the "Company"), and _______________________, a ___
_____ banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's Securities
issued hereunder:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes
imposed on certain Holders, or as otherwise specified in the terms of a
Security established pursuant to Section 2.1, and which are owing to such
Holders.
"Affiliate" shall mean another Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such first
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities or by contract or otherwise. The Trustee may request and
conclusively rely on an Officers' Certificate to determine whether any Person
is an Affiliate of the Company.
"Agent" shall mean any Registrar or Paying Agent or authenticating agent
or co-registrar.
"Authorized Newspaper" means a newspaper printed in the official language
of the country of publication and customarily published at least once a day
on each Business Day in each calendar week and of general circulation in New
York, New York or in any other place as required in this Indenture, whether
or not such newspaper is published on Legal Holidays, or, with respect to the
Securities of any series, such other newspaper(s) as may be specified in or
pursuant to the Board Resolution of the Company or supplement to this
Indenture pursuant to which such series of Securities is issued. Whenever,
under the provisions of this Indenture or such Board Resolution, two or more
publications of a notice or other communication are required or permitted,
such publications may be in the same or different newspapers. If, because of
temporary or permanent suspension of publication or general circulation of
any newspaper or for any other reason, it is impossible or impracticable to
publish any notices required by this Indenture or a Board Resolution in the
manner provided, then such
publication in lieu thereof or such other notice as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Bankruptcy Law" shall mean Title 11, United States Code or any similar
federal or state law for the relief of debtors.
"Bearer Security" means any security in the form established pursuant to
Section 2.1 hereunder which is payable to bearer.
"Board" or "Board of Directors" shall mean the Board of Directors of the
Company or any authorized committee of such Board.
"Board Resolution" means a copy of the resolutions certified by the
Secretary or an Assistant Secretary of the Company as properly adopted by the
Board of Directors of the Company and in full force and effect and delivered to
the Trustee.
"Business Day" shall mean each day that is not a Legal Holiday.
"Capitalized Lease Obligation" shall mean an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles; and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may
be terminated by the lessee without payment of a penalty.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the common stock, $.01 par value per share, of
the Company.
"Company" shall mean Kellwood Company, a Delaware corporation, until a
successor replaces it in accordance with Article V and, thereafter, means the
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the indenture securities.
"Company Request" or "Company Order" shall mean a written request or order
signed in the name of the Company by any two of the following: the Chairman of
the Board, the President, a Vice President, the Chief Financial Officer or the
Treasurer thereof or any other officer specifically authorized to act by the
Board of Directors of the Company, and delivered to the Trustee.
"Consolidated Net Worth" shall mean the excess of assets over liabilities
of the Company and its consolidated Subsidiaries, plus Minority Interests, as
determined from time to time in accordance with GAAP.
2
"consolidation" shall mean, with respect to any Person, the consolidation
of the accounts of such Person if and to the extent the accounts of such
Person and each of its Subsidiaries (or, if such Person is the Company, its
Restricted Subsidiaries) would normally be consolidated with those of such
Person, all in accordance with GAAP. The term "consolidated" shall have a
similar meaning.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 14.2 or such other address as the Trustee may
give to the Company.
"coupon" shall mean any interest coupon appertaining to a Bearer Security.
"Currency Agreement" shall mean any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
such Person or any of its Restricted Subsidiaries against fluctuations in
currency values.
"Default" shall mean any event that is, or after notice or passage of time
or both would be, an Event of Default as defined in Section 6.1 of this
Indenture.
"Depository" or "U.S. Depository" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part in the form
of one or more global Securities, the Person designated as U.S. Depository
pursuant to Section 2.1, which must be a clearing agency registered under the
Exchange Act, and, if so provided pursuant to Section 2.1 with respect to the
Securities of any series, any successor to such Person. If at any time there
is more than one such Person, "Depository" or "U.S. Depository" shall mean,
with respect to any series of Securities, the qualifying entity which has
been appointed with respect to the Securities of that series.
"Eligible Obligations" shall mean obligations as a result of the deposit
of which (along with the simultaneous deposit, if any, of money or U.S.
Government Obligations or both) the Securities will be rated in the highest
generic long-term debt rating category assigned by one or more nationally
recognized rating agencies to debt with respect to which the issuer thereof
has been released from its obligations to the same extent that the Company
has been released from its obligations under this Indenture pursuant to the
defeasance provision of this Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"GAAP" shall mean 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 may be approved by a significant segment
of the accounting profession, consistently applied, that are applicable to
the circumstances as of the date of determination; provided that, for
purposes of calculating the Consolidated Net Worth of a Person (including all
components thereof), "GAAP" shall mean
such generally accepted accounting principles as described above in effect on
the date of this Indenture.
"Holder," "Securityholders" or "Holders of Securities" or other similar
term shall mean, with respect to a Registered Security, the person in whose
name a particular Security shall be registered on the books of the Registrar
kept for that purpose in accordance with the terms hereof and, with respect
to a Bearer Security or any coupon, the bearer thereof, and the word
"majority," used in connection with the term "Holder," "Securityholders" or
"Holder of Securities" or other similar term, shall signify the "majority in
principal amount" whether or not so expressed.
"incur" shall mean, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to
GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "incurrence," "incurred," "incurrable," and
"incurring" shall have meanings correlative to the foregoing); provided that
a change in GAAP that results in an obligation of such Person that exists at
such time becoming Indebtedness shall not be deemed an incurrence of such
Indebtedness.
"Indebtedness" shall mean, with respect to any Person, at any date, any
of the following, without duplication, (i) any liability, contingent or
otherwise, of such Person (A) for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a
portion thereof), (B) evidenced by a note, bond, debenture or similar
instrument or (C) for the payment of money relating to a Capitalized Lease
Obligation or other obligation (whether issued or assumed) relating to the
deferred purchase price of property; (ii) all conditional sale obligations
and all obligations under any title retention agreement (even if the rights
and remedies of the seller under such agreement in the event of default are
limited to repossession or sale of such property), but excluding trade
accounts payable arising in the ordinary course of business; (iii) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction other than entered into in
the ordinary course of business; (iv) all indebtedness of others secured by
(or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on any asset or property
(including, without limitation, leasehold interests and any other tangible or
intangible property) of such Person, whether or not such indebtedness is
assumed by such Person or is not otherwise such Person's legal liability;
provided, that if the obligations so secured have not been assumed in full by
such Person or are otherwise not such Person's legal liability in full, the
amount of such indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such indebtedness secured by such Lien
or the fair market value of the assets of the property securing such Lien;
(v) all indebtedness of others (including all interest and dividends on any
Indebtedness or preferred stock of any other Person for the payment of which
is) guaranteed, directly or indirectly, by such Person or that is otherwise
its legal liability or which such Person has agreed to purchase or repurchase
or in respect of which such Person has agreed contingently
4
to supply or advance funds; and (vi) obligations in respect of Currency
Agreements and Interest Swap Obligations.
"Indenture" shall mean this Indenture as amended or supplemented from
time to time.
"Interest Swap Obligations" shall mean the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or any successor federal income tax laws.
"Issue Date" shall mean the first date on which a Security is
authenticated by the Trustee pursuant to this Indenture.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which banking
institutions and trust companies in the City of New York or in a state where
a Place of Payment is located are authorized or obligated by law, regulation
or executive order to remain closed..
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, charge or adverse claim affecting title or resulting in an encumbrance
against real or personal property or a security interest of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof or any filing or agreement to file a
financing statement as debtor under the Uniform Commercial Code or any
similar statute other than to reflect ownership by a third party or property
leased to the Company or any of its Subsidiaries under a lease that is not in
the nature of a conditional sale or title retention agreement).
"Maturity" when used with respect to any Security shall mean the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Minority Interest" shall mean any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
"Officer" shall mean the Chairman of the Board of Directors, the Vice
Chairman, the President, the Treasurer, any Assistant Treasurer, Controller,
Secretary, Assistant Secretary, or any Vice President of the Company.
"Officers' Certificate" shall mean, with respect to any Person, a
certificate signed by the Chairman of the Board of Directors, the Vice
Chairman, the President or any Vice
5
President and by the Treasurer or any Assistant Treasurer or the Secretary or
any Assistant Secretary of such Person that shall comply with applicable
provisions of this Indenture.
"Opinion of Counsel" shall mean an opinion in writing signed by a
Person's legal counsel (who may be an employee of or counsel to such Person
or the Trustee) who is acceptable to the Trustee.
"Original Issue Discount Security" shall mean any Security which provides
that an amount less than its principal amount is due and payable upon the
acceleration of the maturity thereof after an Event of Default.
"Periodic Offering" shall mean an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the maturity or
maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.1 with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"Permitted Liens" shall mean, with respect to any Person:
(i) Liens existing on the Issue Date;
(ii) Liens on property or assets of, or any shares of stock of or
secured debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted
Subsidiaries;
(iii) Liens in favor of the Company or any of its Restricted
Subsidiaries;
(iv) Liens in favor of governmental bodies to secure progress
or advance payments;
(v) Liens securing industrial revenue or pollution control bonds;
(vi) Liens on Property to secure Indebtedness incurred for the
purpose of (i)financing all or any part of the purchase price of such
Property incurred prior to, at the time of, or within 180 days after,
the acquisition of such property or assets or (ii) financing all or any
part of the cost of construction, improvement, development or expansion of
any such Property;
(vii) Statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good
6
faith by appropriate proceedings, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall
have been made therefor;
(viii) Liens on current assets of Restricted Subsidiaries securing
Indebtedness of such Restricted Subsidiaries; and
(ix) any extensions, substitutions, replacements or renewals in
whole or in part of a Lien (an "existing Lien") enumerated in clauses
(i) through (viii) above; provided that the Lien may not extend beyond
(A) the Property or Indebtedness subject to the existing Lien and (B)
improvements and construction on such Property and the Indebtedness secured
by the Lien may not exceed the Indebtedness secured at the time by the
existing Lien.
"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
sub-division thereof, or any other entity.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of and interest and any
Additional Amounts on the Securities of that series are payable as specified
as provided pursuant to Section 2.1.
"principal" of a debt security (including the Securities) shall mean the
principal of the security plus the premium, if any, payable on the security
which is due or overdue or is to become due at the relevant time.
"Principal Property" shall mean any manufacturing plant or warehouse
owned or leased by the Company or any Subsidiary whether owned or leased on
the date hereof or hereafter, the gross book value of which exceeds one
percent of Consolidated Net Worth, other than manufacturing plants and
warehouses which the Board of Directors by resolution declares are not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as an entirety and which, when taken together with
all other plants and warehouses as to which such a declaration has been so
made, is so declared by the Board of Directors to be not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in
the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Redemption Date" when used with respect to any Security to be redeemed
shall mean the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" shall mean the amount payable for the redemption of
any Security on the Redemption Date, and shall always include interest
accrued and unpaid to the
7
Redemption Date and any Additional Amounts payable with respect thereto,
unless otherwise specifically provided.
"Registered Security" shall mean any Security registered on the books of
the Registrar kept for that purpose in accordance with the terms hereof.
"Responsible Officer," when used with respect to the Trustee, shall mean
any officer in the corporate trust department of the Trustee or any officer
of the Trustee customarily performing functions similar to those performed by
any officer in the corporate trust department of the Trustee with respect to
a particular corporate matter or any other officer to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" shall mean any Subsidiary which owns (i) a
Principal Property or (ii) any trademark, trade name, brand name or license
(collectively, "Intangible Property"), excluding any Intangible Property the
use of which did not give rise to revenues in excess of $25 million during
the Company's most recently completed fiscal year.
"Securities" shall mean the debt securities, as amended or supplemented
from time to time pursuant to this Indenture, that are issued under this
Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Indebtedness" means Indebtedness of the Company outstanding at
any time, except (a) any Indebtedness as to which, by the terms of the
instrument creating or evidencing the same, it is provided that such
Indebtedness is not senior in right of payment to the Securities, (b) the
Securities, (c) any Indebtedness of the Company to a Wholly-Owned Subsidiary
of the Company, (d) interest accruing after the filing of a petition
initiating any proceeding referred to in Section 6.1(g) unless such interest
is an allowed claim enforceable against the Company in a proceeding under
Federal or state bankruptcy laws and (e) trade accounts payable.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Subsidiary" of any Person shall mean (i) any Person of which more than
50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more of the Subsidiaries of
that Person or a combination thereof, and (ii) any partnership, joint venture
or other Person in which such Person or one or more of the Subsidiaries of
that Person or a combination thereof has the power to control by contract or
otherwise the board of directors or equivalent governing body or otherwise
controls such entity.
8
"TIA" or "Trust Indenture Act" shall mean the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as amended and as in effect on the date of
this Indenture, except as provided in Sections 9.1 and 9.3 hereof.
"Transfer Agent" shall mean any Person, which may be the Company,
authorized by the Company to exchange or register the transfer of Securities.
"Trustee" shall mean the party named as such in this Indenture unless a
successor replaces it pursuant to the provisions hereunder, and thereafter
shall mean such successor.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as full faith
and credit obligation by the United States of America, that, in either case,
are not callable or redeemable at the option of the issuer thereof and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligations or a specific
payment of interest on or principal of any such U.S. Government Obligations
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt for any amount received by the custodian in respect of the U.S.
Government Obligations or the specific payment of interest on or principal of
the U.S. Government Obligations evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity on a series of Securities
at the most recent redetermination of interest on such series, and calculated
in accordance with accepted financial practice.
SECTION 1.2 OTHER DEFINITIONS.
Defined in
Section
-----------
"Conversion Agent"....................................... 2.3
"Conversion Price"....................................... 12.4
"covenant defeasance option" ............................ 8.1
"Date of Conversion"..................................... 12.2
"Events of Default"...................................... 6.1
"Funded Debt"............................................ 4.8
"Last Sale Price"........................................ 12.3
9
"legal defeasance option"................................ 8.1
"mandatory sinking fund payment"......................... 11.1
"optional sinking fund payment".......................... 11.1
"Paying Agent"........................................... 2.3
"Rights"................................................. 12.1
"Registrar".............................................. 2.3
"Sale/Leaseback Transaction"............................. 4.8
"Securities Custodian"................................... 2.3
"Surviving Entity"....................................... 5.1
"Trading Day"............................................ 12.3
"Value".................................................. 4.8
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Securities means the Company, any other obligor upon the
Securities or any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
In addition, for purposes of Sections 311(b)(4) and 311(b)(6) of the TIA,
the following terms shall have the following meanings:
"cash transaction" means any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon banks' or
bankers' acceptances and payable upon demand.
"self-liquidating paper" means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of
10
financing the purchase, processing, manufacture, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural and words in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) times of day shall refer to New York City time.
ARTICLE II
THE SECURITIES
SECTION 2.1 TERMS AND FORMS.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be
issued in one or more series of Securities, and the Securities of each such
series of Securities shall rank equally and pari passu with the Securities of
each other series of Securities, but all Securities issued hereunder shall be
subordinate and junior in right of payment, to the extent and in the manner
set forth in Article XIII, to all Senior Indebtedness. The Securities shall
bear the title, interest, if any, at the rates and from the dates, shall
mature at the times, may be redeemable at the prices and upon the terms,
shall be denominated and payable at the place or places and in the currency
or currencies (which may be other than United States dollars), including
composite currencies,
11
and shall contain or be subject to such other terms as shall be approved by
or pursuant to a Board Resolution of the Company or in one or more
supplements to this Indenture.
The Securities of each series hereunder shall be in one or more forms
approved from time to time by or pursuant to a Board Resolution of the
Company or in one or more supplements to this Indenture establishing the
following:
(1) the title or designation of the Securities and the series in which such
Securities shall be included (which, unless such Securities constitute
part of a series of Securities previously issued, shall distinguish the
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of such
title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to
Sections 2.5, 2.6, 2.9 or 3.7);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both; any
restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series
may be exchanged for Registered Securities of the series; and whether
any Securities of the series are to be issuable initially in global
form and, if so, (i) whether beneficial owners of interests in any such
global Security may exchange such interest for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner specified in Section 2.9 and (ii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to
any global Security;
(4) the date as of which any Bearer Securities of the series and any
temporary global Security representing outstanding Securities of the
series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer
Security in global form (representing all of the outstanding Bearer
Securities of the series) payable in respect of any date or dates prior
to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization
with respect to the portion of such temporary Bearer Security held
for its account and, in such event, the terms and conditions (including
any certification requirements) upon which any such interest payment
received by a
12
clearing organization will be credited to the Persons entitled to
interest payable on such date or dates;
(6) the date or dates on which the principal of such Securities is payable;
(7) the rate or rates at which such Securities shall bear interest, if any,
or the method in which such rate or rates are determined, the date or
dates from which such interest shall accrue, the dates on which such
interest shall be payable and the record date for Holders entitled to
the interest payable on Registered Securities on any such date, whether
and under what circumstances Additional Amounts on such Securities
shall be payable and, if so, whether the Company has the option to
redeem the affected Securities rather than pay such Additional Amounts,
and the basis upon which interest shall be calculated if other than as
otherwise provided in this Indenture;
(8) the place or places, if any, in addition to or other than the City of
New York, New York, where the principal of and interest on or
Additional Amounts, if any, payable in respect of such Securities
shall be payable;
(9) the period or periods within which, the price or prices at which and
the terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase such
Securities pursuant to a sinking fund, at the option of a Holder
thereof or otherwise and the period or periods within which, the
price or prices at which and the terms and conditions upon which
such Securities shall be redeemed or purchased in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities;
(11) the denominations in which Registered Securities of the series, if any,
shall be issuable, and the denominations in which Bearer Securities of
the series, if any, shall be issuable, in either case if other than as
otherwise provided in this Indenture;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.2;
(13) if other than such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public or private
debts, the coin or currency, including composite currencies, in which
payment of the principal of or interest, if any, and any Additional
Amounts in respect of such Securities
13
shall be payable and whether the Securities of the series may be
discharged other than as provided in Article VIII;
(14) if the principal of or interest, if any, and any Additional Amounts in
respect of such Securities are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency, including composite
currencies, other than that in which the Securities are stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(15) if the amount of payments of principal of or interest, if any, or any
Additional Amounts in respect of such Securities may be determined
with reference to an index, formula or other method based on a coin or
currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(16) if the Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms
of such certificates, documents or conditions;
(17) any terms which may be related to warrants issued by the Company in
connection with, or for the purchase of, Securities of such series,
including whether and under what circumstances the Securities of any
series may be used toward the exercise price of any such warrants;
(18) whether the Securities of the series are to be convertible into shares
of common stock or other securities of the Company, and the conversion
price, conversion period and any conversion provisions other than as
provided in Article XII;
(19) any other events of default or covenants with respect to Securities of
such series; and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
If the form of the Security of any series is approved by or pursuant to a
Board Resolution, an Officers' Certificate delivered to the Trustee shall
state that all conditions precedent relating to the authentication and
delivery of such Security have been complied with and shall be accompanied by
a copy of the Board Resolution by or pursuant to which the form of such
Security has been approved. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company is subject or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company and the Trustee). Each
Security shall be dated the date of its
14
authentication. Each Security may contain any other terms as are not
inconsistent with the provisions of this Indenture.
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as
to denomination and the rate or rates of interest, if any, the time or times
at which the principal thereof may be payable, the date from which interest,
if any, shall accrue and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in the Officers' Certificate
hereinabove described or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
The Securities of each series may be issued as Registered Securities
without coupons or, if provided by the terms of the instrument establishing
such series of Securities, as Bearer Securities, with or without coupons and,
in either case, may be issued initially, temporarily or permanently in global
form (as provided in Section 2.10). Unless the form of a Security for a
series provides otherwise, the Registered Securities shall be issued in
denominations of $1,000 or integral multiples thereof and Bearer Securities
shall be issuable in the denomination of $5,000.
Except as otherwise specified as contemplated by this Section 2.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
If any of the terms of the series are established by action taken by or
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized person
on behalf of the Company and delivered to the Trustee at or prior to the
delivery of the Officer's Certificate setting forth, or providing the manner
for determining, the terms of the series.
With respect to Securities of a series subject to a Periodic Offering,
such Board Resolution or Officer's Certificate may provide general terms for
Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Company, or one or more of the
Company's agents designated in an Officer's Certificate, in accordance with a
Company Order.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities and the coupons for the Company by
manual or facsimile signature. The Company's seal may be reproduced on the
Securities, but the Company's seal shall not be required to be included on
the Securities.
15
If an Officer whose signature is on a Security or coupon no longer holds
that office at the time the Security is authenticated by the Trustee, the
Security and coupon shall nevertheless be valid.
The aggregate principal amount of Securities outstanding hereunder at any
time shall be unlimited except that such outstanding amount (exclusive of any
premium) may not exceed the amount authorized from time to time by the Board
of Directors of the Company and except as provided in Section 2.6. Upon
receipt of a Company Order for the authentication and delivery of Securities
of a series, the Trustee shall authenticate and deliver for original issue
Securities of a series as to which an Officers' Certificate of the Company or
a supplemental indenture has been delivered to the Trustee pursuant to
Section 2.1.
No Security or any coupon appertaining thereto shall be valid until the
Trustee or the authenticating agent referred to below manually signs the
certificate of authentication on the Security. Each Registered Security
shall be dated the date of its authentication. Bearer Securities and any
temporary Bearer Security in global form shall be dated as specified in the
Officers' Certificate of the Company or in the supplements to this Indenture
contemplated by Section 2.1. The signature of the Trustee or the
authenticating agent referred to below shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate the Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate.
Except as permitted by Section 2.6, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons for interest
then matured have been detached and canceled.
The Trustee's certificate of authentication shall be in the following
form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
------------------------------
____________________________,
as Trustee
By----------------------------
Authorized Officer
16
If the forms and terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Section 2.1 and 2.2, in authenticating such
Securities and accepting the additional responsibilities under this Indenture
relating to such Securities the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon an Opinion
of Counsel to the effect that:
(a) the form and terms of such Securities and coupons, if any, have been
duly authorized and established pursuant to Sections 2.1 and 2.2 and comply
with this Indenture, and
(b) such Securities, when authenticated and delivered by the Trustee and
issued by the Company, and such coupons, if any, when issued by the Company,
in the manner and subject to any conditions specified in such Opinion of
Counsel will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to customary exceptions,
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and in
accordance with a Board Resolution or any Officers' Certificate pursuant to
Section 2.1, as the case may be) will have been, duly authorized by the
Company and established in conformity with the provisions of this Indenture;
and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this Indenture,
and (3) issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of
any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and other documents delivered pursuant to Section 2.1 and this
Section 2.2, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until it has received
written notification that such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and
deliver such Securities do not violate any rules,
17
regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
SECTION 2.3 REGISTRAR, PAYING AGENT, CONVERSION AGENT, DEPOSITORY AND
SECURITIES CUSTODIAN.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar"), an
office or agency including the office or agency maintained by the Company
pursuant to Section 4.2 where Securities may be presented for payment (the
"Paying Agent") and, if applicable, an office or agency where the Securities
may be presented for conversion (the "Conversion Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents or conversion agents. The term "Paying Agent" includes any
additional paying agent, and the term "Conversion Agent" includes any
additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, Depository, Securities Custodian
or co-registrar not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such agent and
incorporate the terms of the TIA. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent, Conversion Agent, if applicable, or Securities
Custodian, if applicable, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.7. The Company or
any of its Subsidiaries may act as Paying Agent, Conversion Agent, Registrar,
co-registrar or Transfer Agent.
The Company initially appoints the Trustee as Registrar and Paying Agent
in connection with the Securities and the Trustee accepts such appointment.
SECTION 2.4 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven Business Days before each interest
payment date (and in all events at intervals of not more than six months) and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders. The Company and the Trustee shall otherwise
comply with TIA Section 312(a).
SECTION 2.5 TRANSFER, REGISTRATION AND EXCHANGE.
When a Registered Security is presented at an office or agency maintained
for that series pursuant to Section 4.2 in proper form for registration of
transfer with a request to
18
register a transfer, the Registrar or co-registrar at that office shall
register the transfer as requested.
At the option of the Securityholder, Registered Securities of any
series may be exchanged upon surrender to the Registrar or a co-registrar
for Registered Securities of the same series of like aggregate principal
amount, stated maturity and tenor and of other authorized denominations
upon surrender at any office or agency maintained for that series
pursuant to Section 4.2.
If so provided with respect to Securities of a series, at the option
of the Holder, Bearer Securities of any such series may be exchanged for
Registered Securities of the same series containing identical terms and
provisions, of any authorized denominations and aggregate principal
amount, upon surrender of the Bearer Securities to be exchanged at any
office or agency maintained for that series pursuant to Section 4.2, with
all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee
in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
for that series harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent for that series any such missing
coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 4.2, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security
of any series is surrendered at any such office or agency maintained for
that series pursuant to Section 4.2 in exchange for a Registered Security
of the same series and like tenor after the close of business at such
office or agency on any record date for the payment of interest and any
Additional Amounts thereon and before the opening of business at such
office or agency on the relevant payment date therefor, such Bearer
Security shall be surrendered without the coupon relating to such payment
date or proposed date of payment, as the case may be (or if such coupon
is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest
will not be payable on such payment date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Registrar or
co-registrar) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Registrar duly
executed by the Holder thereof or his attorney duly authorized in
writing. To
19
permit transfers and exchanges, the Company shall execute and the Trustee
shall authenticate Securities at the Registrar's or co-registrar's
request.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.1, any global Security shall be exchangeable
only if (i) the Depository or U.S. Depository, as applicable, is at any
time unwilling, unable or ineligible to continue as Securities Depository
and a successor Depository, or U.S. Depository as applicable, is not
appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the
Trustee a Company Order to the effect that such global Security shall be
so exchangeable, or (iii) an Event of Default has occurred and is
continuing with respect to the Securities. If the beneficial owners of
interests in a global Security are entitled to exchange such interests
for Securities of such series and of like tenor and a principal amount of
any authorized form and denomination, as specified as contemplated by
Section 2.1, then without unnecessary delay but in any event not later
than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Securities of that series
in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date
on which such interests may be so exchanged, such global Securities shall
be surrendered from time to time by the U.S. Depository or such other
Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the
U.S. Depository or such other Depository, as the case may be, which
instructions shall be in writing but need not be accompanied by an
Officers' Certificate of the Company or an Opinion of Counsel, as shall
be specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or in
part, for definitive Securities of the same series without charge. The
Trustee shall authenticate and make available for delivery, in exchange
for each portion of such surrendered global Security, a like aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof (unless the Securities of the
series are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the
global Security shall be issuable only in the form in which the
Securities are issuable, as specified as contemplated by Section 2.1);
provided, however, that no such exchanges may occur (a) for a period of
15 days next preceding the 15th day of any selection of Securities of
that series to be redeemed; pursuant to Section 3.3, or to exchange any
Securities of a series selected, called or being called for redemption in
whole or in part except in the case of any Security to be redeemed in
part, the portion thereof not so to be redeemed; and provided, further,
that (unless otherwise specified as contemplated by Section 2.1) no
Bearer Security delivered in exchange for a portion of a global Security
shall be mailed or otherwise delivered to any location in the United
States. Promptly following any such exchange in part, such global
Security shall be returned by the Trustee to the U.S. Depository or such
other Depository referred to above in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in
exchange for any portion of a global Security after the close of business
at the office or agency where such exchange
20
occurs on any record date for the payment of interest or any Additional
Amounts thereon, and before the opening of business at such office or
agency on the relevant payment date therefor, interest and any Additional
Amounts in respect of such Registered Security will not be payable on
such payment date, but will be payable on such payment date only to the
Person to whom interest or any Additional Amounts in respect of such
portion of such global Security is payable in accordance with the
provisions of this Indenture.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 2.9 or
9.5 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of, or exchange any Securities of any series for a period of 15 days next
preceding the day of any selection of Securities of such series to be
redeemed pursuant to Section 3.3, or (b) to register the transfer of or
exchange any Securities of any series selected, called or being called
for redemption in whole or in part except, in the case of any Registered
Security to be redeemed in part, the portion thereof not so to be
redeemed or (c) to exchange any Bearer Security so selected for
redemption except, to the extent provided with respect to Securities of a
series, that such a Bearer Security may be exchanged for a Registered
Security of that series, provided that such Registered Security shall be
immediately surrendered for redemption with written instruction for
payment consistent with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company evidencing
the same debt, and entitled to the same benefits under this Indenture, as
the Securities endorsed thereon surrendered upon such registration of
transfer or exchange.
Section 2.6 REPLACEMENT SECURITIES.
If the Holder of a mutilated or defaced Security or a Security with a
mutilated or defaced coupon appertaining to it surrenders such Security
to the Trustee or if the Holder of a Security presents evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or
theft of the Security or the destruction, loss or theft of a coupon and
surrenders the Security to which such coupon appertains with all
appurtenant coupons not so lost, stolen or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Security of
the same series and of like tenor, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security, if the
requirements set forth in the next succeeding paragraph are met. If
required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a
Security is replaced.
21
Upon the issuance of any substitute Security, 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. In
case any Security or coupon which has matured or is about to mature or
has been called for redemption in full shall become mutilated or defaced
or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security or coupon, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Security or coupon); provided, however, that the applicant for such
payment shall furnish to the Company and to the Trustee and any agent of
the Company or the Trustee such security or indemnity as any of them may
require to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Company and the
Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or coupon
and of the ownership thereof.
Every substitute Security of any series, with coupons, if any, issued
pursuant to the provisions of this Section 2.6 by virtue of the fact that
any Security is destroyed, lost or stolen or that a coupon appertaining
to it is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security or coupon shall be at any time enforceable by anyone
and shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the
express condition that, to the extent permitted by the law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.7 OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of such series authenticated and delivered by the Trustee
except for those canceled by it, those delivered to it for cancellation,
those described in this Section as not outstanding and in the case of any
global Securities, the principal amount by which such global Securities
have been reduced by the Trustee or the Securities custodian in
accordance with this Indenture.
If any Security is replaced or paid pursuant to Section 2.6, it
ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the principal amount of any Security is considered paid under
Section 4.1 or 8.1, it ceases to be outstanding and interest on it ceases
to accrue.
22
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities of a particular series (or portions thereof) to be redeemed or
maturing, as the case may be (and in the case of any Security which is to
be redeemed prior to the Maturity thereof, notice of such redemption has
been duly given or provision satisfactory to the Trustee has been made
for giving such notice), and the Paying Agent is not prohibited from
paying such money to Securityholders on that date pursuant to the terms
of this Indenture, then on and after that date such Securities of that
series (or portions thereof) cease to be outstanding and interest on them
ceases to accrue.
If any Security is canceled by the Trustee or delivered to the
Trustee for cancellation, it ceases to be outstanding and interest on it
ceases to accrue.
A Security of any series does not cease to be outstanding because the
Company or an Affiliate holds such Security, except as otherwise provided
in Section 2.8 hereof.
In determining whether the Holders of the requisite principal amount
of outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
(i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.1 and (ii) the principal amount of a
Security denominated in a foreign currency or currencies, of the
principal amount (or, in the case of an Original Issue Discount Security,
the United States dollar equivalent, determined pursuant to Section
14.15, of such Security of the amount determined as provided in (i)
above) of such Security.
Section 2.8 TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities (in the aggregate or with respect to a particular series,
in each case only as expressly provided herein) have concurred in any
direction, waiver or consent, any Securities owned by the Company or an
Affiliate shall be disregarded (including for purposes of determining the
outstanding principal amount of Securities or any series of Securities)
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
Section 2.9 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon
receipt of the written order of the Company signed by two Officers.
Temporary Securities and, if Bearer Securities, temporary coupons shall
be substantially in the form of definitive Securities and, if Bearer
Securities,
23
definitive coupons, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee, upon receipt of the written order of the
Company signed by two Officers, shall authenticate definitive Securities in
exchange for temporary Securities. Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as definitive
Securities.
SECTION 2.10 SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in a global form, any such Security
may provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount or changes
in the rights of Holders, of outstanding Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be specified therein.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Securities or coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment and any coupons surrendered for payment. The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange,
payment, replacement or cancellation and all coupons surrendered for payment and
shall destroy canceled Securities in accordance with the usual destruction
procedures of the Trustee and deliver evidence of such destruction to the
Company, unless the Company directs the Trustee to return such canceled
Securities to the Company by written order signed by two Officers. The Company
may not issue new Securities to replace Securities that it has redeemed or paid
or that have been delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest or any Additional Amounts
on any series of Registered Securities, and so long as the Trustee deems the
following procedure practicable, the Company shall pay the defaulted interest
and any Additional Amounts to Persons who are Holders of Registered Securities
of such series on a subsequent special record date in the following manner. The
Company shall fix the special record date (which shall be at least five days
before the payment date) for the payment of such defaulted interest and any
Additional Amounts on such Securities and the payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or the
Trustee) shall mail each Holder of Registered Securities a notice that states
the special record date, the payment date and the amount of defaulted interest
and any Additional Amounts to be paid, provided the Company has made
arrangements satisfactory to the Trustee for payment of the
24
aggregate amount to be paid on such payment date. On such payment date the
Trustee shall pay out of funds provided by the Company such defaulted
interest and any Additional Amounts. In case a Bearer Security of any series
is surrendered at the office or agency of the Company maintained pursuant to
Section 4.2 in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office
or agency on any special record date and before the opening of business at
such office or agency on the related proposed date for payment of defaulted
interest and any Additional Amounts, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
defaulted interest and any Additional Amounts will not be payable on such
proposed date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon on or after such payment date in accordance with the provisions
of this Indenture. The Company may pay defaulted interest and any Additional
Amounts in any other lawful manner.
SECTION 2.13 PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any Agent may deem and treat the Person
in whose name any Security shall be registered upon the register of Securities
kept by the Registrar as the absolute owner of such Registered Security (whether
or not such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company, any
Registrar or co-registrar) for the purpose of receiving payments of principal
of, interest on or any Additional Amounts payable with respect to such
Registered Security and for all other purposes whatsoever and neither the
Company, the Trustee nor any Agent shall be affected by any notice to the
contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon shall 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.
ARTICLE III
REDEMPTION
SECTION 3.1 APPLICABILITY OF ARTICLE.
This Article shall apply to the Securities of each series, if any, that by
their terms are subject to redemption at the option of the Company or pursuant
to the operation of a sinking fund or otherwise are required to be redeemed
pursuant to the terms of the Securities. If the
25
terms of any Security shall conflict with any provision of this Article III,
the terms of such Security shall govern.
SECTION 3.2 NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions, if any, set forth in such Securities, it shall furnish to
the Trustee an Officers' Certificate setting forth the paragraph of the
Securities of the applicable series pursuant to which the redemption shall
occur, the Redemption Date, the principal amount of Securities to be redeemed
and the Redemption Price.
If Securities of any series by their terms are redeemable pursuant to the
operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund payment or amount
required to satisfy such mandatory redemption payment and the portion of such
payment which is to be satisfied by delivering and crediting Securities of the
same series pursuant to Section 3.6.
If the Company elects to reduce pursuant to the terms of such Securities
the principal amount of Securities to be redeemed, it shall notify the Trustee
by Officers' Certificate of the amount of the reduction and the basis for it.
If the Company elects to credit against any such redemption Securities of the
same series it has not previously delivered to the Trustee for cancellation, it
shall deliver the Securities with such Officers' Certificate.
The Company shall give each notice or Officers' Certificate provided for in
this Section at least 45 days (unless a shorter period shall be satisfactory to
the Trustee or a longer period required by Section 3.4) but not more than 60
days before the applicable Redemption Date.
If the Registrar is not the Trustee, the Company shall, concurrently with
each notice of redemption or repurchase, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Securities held by each Holder.
SECTION 3.3 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed on a pro rata basis, by lot
or by such method as the Trustee shall deem fair and appropriate. In the event
of partial redemption by lot, the particular Securities of a series to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities not previously called for redemption.
26
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities and
portions of Securities selected shall be in amounts of $1,000 or whole multiples
of $1,000; except that if all of the Securities of a Holder are to be redeemed,
the entire outstanding amount of Securities held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.4 NOTICE OF REDEMPTION.
The Company shall give notice of a redemption at least 30 days but not more
than 60 days before the Redemption Date, with respect to Registered Securities,
by mailing a notice of redemption to each Holder of Registered Securities of
such series to be redeemed at such ▇▇▇▇▇▇'s address as it appears on the
Securities register maintained by the Registrar and, with respect to Bearer
Securities, by publishing in an Authorized Newspaper notice of such redemption
on two separate days.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed;
(6) that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Securities to be redeemed;
(7) if any Security is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof)
of such Security to be redeemed and that, on or after the Redemption
Date, upon surrender of such Security, a new Security or Securities
of the same series in aggregate principal amount equal to the
unredeemed portion thereof will be issued without charge to the
Securityholder;
27
(8) if less than all of the Securities of a series are to be redeemed,
the identification of the particular Securities of such series (or
portion thereof) to be redeemed, as well as the aggregate principal
amount of Securities of such series to be redeemed and the aggregate
principal amount of Securities of such series estimated to be
outstanding after such partial redemption; and
(9) the CUSIP number, if any. The Trustee shall not be responsible for
the correctness or accuracy of any such CUSIP number.
At the Company's request, the Trustee shall give the notice of redemption
in the name and at the expense of the Company. In such event, the Company shall
provide the Trustee with the information required by this Section and shall
provide notice of such redemption to the Trustee at least 45 days prior to the
Redemption Date (unless a shorter period shall be satisfactory to the Trustee).
If such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders to the Trustee and any Paying Agent at least 2 days
prior to the date such notice is given to such Holders, but in any event at
least 15 days prior to the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee).
SECTION 3.5 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities of the series called for
redemption become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Securities shall be paid at the
Redemption Price, plus accrued interest to the Redemption Date and any
Additional Amounts with respect thereto; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable, in the case of Bearer Securities, to bearers of the coupons for such
interest and Additional Amounts upon surrender thereof and, in the case of
Registered Securities, to the Holders of such series of Securities, registered
as such, at the close of business on the relevant record date for the payment of
such installment of interest and Additional Amounts.
Notice of redemption shall be deemed to be given when mailed or published,
as the case may be, whether or not the Holder receives the notice. In any
event, failure to give such notice, or any defect therein, shall not affect the
validity of the proceedings for the redemption of the Securities.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of each missing coupon or
coupons may be waived by the Company and the Trustee if there shall be furnished
to them such security or indemnity as they may require to save each of them and
any Paying Agent for such Security harmless. If thereafter
the Holder of such Security shall surrender to the Trustee or any Paying
Agent for such Security any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted; provided, however, that
interest (and any Additional Amounts) represented by coupons shall be payable
only upon presentation and surrender of these coupons at an office or agency
located outside of the United States except as otherwise provided in Section
4.2.
SECTION 3.6 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall irrevocably deposit
with the Trustee or with the Paying Agent (or if the Company or a Subsidiary of
the Company is acting as the Paying Agent, set aside, segregate and hold in
trust, as provided herein) in immediately available funds money sufficient to
pay the Redemption Price of and accrued and unpaid interest on all Securities to
be redeemed on that date.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. If any Security
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
will be paid on the unpaid principal, from the Redemption Date until such
principal is paid, and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate provided in the Securities for the
applicable series.
If any Security by its terms permits any sinking fund payment obligation to
be satisfied by delivering and crediting Securities, the Company shall deliver
such Securities to the Trustee for crediting against such payment obligation in
accordance with the terms of such Securities and this Indenture.
SECTION 3.7 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of the same series equal in principal amount to the
unredeemed portion of the Security surrendered.
If a Security in global form is surrendered upon redemption in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other Depository for such Security in global form as shall be
specified in the Company Order to the Trustee with respect thereto, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE IV
COVENANTS
29
Subject to the provisions of Section 8.1, so long as Securities are
outstanding hereunder, the Company covenants for the benefit of the
Securityholders that:
SECTION 4.1 PAYMENT OF SECURITIES.
The Company will punctually pay the principal of, interest and Additional
Amounts, if any, on the Securities on the dates and in the manner provided in
the Securities, any coupons appertaining thereto and this Indenture. Principal,
interest and any Additional Amounts shall be considered paid on the date due if
the Paying Agent (other than the Company or any of its Subsidiaries) holds on
that date money sufficient to pay all principal, interest and any Additional
Amounts then due.
Any interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before their maturity, in respect of the principal of such a
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
The Company shall pay interest on overdue principal and, to the extent
lawful, interest on overdue installments of interest or Additional Amounts, if
any, at the rate borne by such Securities.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any record date established to
determine the Person to whom interest or any Additional Amounts are payable on
the next following interest payment date therefor and before the opening of
business (at such office or agency) on such interest payment date, such Bearer
Security shall be surrendered without the coupon relating to such interest
payment date, and interest will not be payable on such interest payment date in
respect of the Registered Security issued in exchange of such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY FOR NOTICES AND
DEMANDS.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
30
If Securities of a series are issuable as Bearer Securities, the Company
shall maintain, subject to any laws or regulations applicable thereto, an office
or agency in a Place of Payment for such series that is located outside the
United States where Securities of such series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of such series); provided, however, that if the
Securities of such series are listed on The International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent in
London, Luxembourg or any other city so required located outside the United
States, as the case may be, so long as the Securities of such series are listed
on such exchange. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series) at the place specified for that purpose pursuant to Section 2.1.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal or interest or Additional Amounts on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States; provided, however, payment of principal of
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at the office of the Paying Agent in
the City of New York, State of New York if (but only if) payment of the full
amount of such principal, interest or Additional Amounts at all offices outside
the United States maintained for that purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 4.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, or interest or Additional Amounts on, any of the Securities of
that series, segregate and hold in trust for the
31
benefit of the Person entitled thereto a sum sufficient to pay the principal
or interest or Additional Amounts so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and shall
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of, or
interest or Additional Amounts on, any Securities of that series, deposit with
any Paying Agent a sum sufficient to pay the principal or interest and
Additional Amounts so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, interest or Additional Amounts, and
(unless such Paying Agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of or
interest or any Additional Amounts on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any Default by the Company in the making
of any payment of principal or interest or any Additional Amounts on the
Securities of that series; and
(3) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon
the same terms as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, 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 or any Additional Amounts on any
Security of any series and remaining unclaimed for two years after such
principal or interest has or Additional Amounts have become due and payable
shall be paid to the Company upon receipt of a Company Order to that effect
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any
32
coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, or to be mailed to
Holders of Registered Securities, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining shall be repaid to the Company.
SECTION 4.4 COMMISSION REPORTS; REPORTS TO TRUSTEE; REPORTS TO
HOLDERS.
So long as any Security is outstanding, the Company will:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act (or copies of such portions thereof as may be prescribed
by the Commission by rules and regulations); or, if the Company is not
required to file with the Commission information, documents or reports
pursuant to either Section 13 or Section 15(d) of the Exchange Act, then the
Company will file with the Trustee and mail to the Holders of the Securities,
as the names and addresses of such Holders appear upon the register of
Securities, (i) annual reports containing the information required by the
Exchange Act to be contained in an Annual Report on Form 10-K, (ii) quarterly
reports containing the information required by the Exchange Act to be
contained in a Quarterly Report on Form 10-Q and (iii) promptly after the
occurrence of an event required to be therein reported, such other reports
containing information required by the Exchange Act to be contained in a
Current Report on Form 8-K;
(b) file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants provided for in this
Indenture as may be required by such rules and regulations, including, in the
case of annual reports, if required by such rules and regulations,
certificates or opinions of independent public accountants, conforming to the
requirements of Sections 14.4 and 14.5, as to compliance with conditions or
covenants, compliance with which is subject to verification by accountants;
and
(c) mail to the Holders of the Registered Securities, as the names
and addresses of such Holders appear upon the register of Securities, in the
manner and to the extent provided in Section 7.6, such additional summaries
of any information, documents and reports required to be filed with the
Trustee pursuant to the provisions of paragraphs (a) and (b) of this
33
Section 4.4 as may be required to be provided to such Holders by the rules
and regulations of the Commission under the provisions of the TIA.
SECTION 4.5 COMPLIANCE CERTIFICATES.
Within 60 days after the close of each fiscal year of the Company ending
after the date hereof, the Company shall deliver to the Trustee a statement
signed by the Chairman of its Board of Directors, or its Vice Chairman or its
President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Company
(provided that one of such signatories shall be the Company's principal
executive officer, principal financial officer or principal accounting
officer), stating that in the course of the performance by the signers of
their duties as Officers of the Company they would normally obtain knowledge
of any Default by the Company and whether or not they have obtained knowledge
of any such Default, and, if so, specifying each such Default of which the
signers have knowledge and the nature thereof and what action the Company is
taking or proposes to take with respect thereto. The Company shall also
comply with TIA Section 314(a)(4).
SECTION 4.6 CORPORATE EXISTENCE.
Subject to Article V, the Company will do or cause to be done all things
necessary to and will cause each of its Restricted Subsidiaries to preserve
and keep in full force and effect its corporate existence, material rights
(charter and statutory) and franchises of the Company and each of its
Restricted Subsidiaries; provided, however, that the Company shall not be
required to preserve any such material right or franchise or the corporate
existence of any of its Subsidiaries if (a) the preservation thereof is no
longer desirable in the conduct of the business of the Company or such
Subsidiary and (b) the loss thereof is not disadvantageous in any material
respect to the Holders of the Securities.
SECTION 4.7 LIMITATION ON LIENS.
Subject to the provisions of Article VIII (to the extent they are
applicable to the Securities of any series) the Company will not, and will
not permit any of its Restricted Subsidiaries to, create, incur or otherwise
cause or suffer to exist or become effective any Liens of any kind upon any
Principal Property or any shares of stock or debt of any Restricted
Subsidiary, now owned or hereafter acquired, that secures any Indebtedness
that is pari passu with the Securities unless all payments due under this
Indenture and the Securities are secured on an equal and ratable basis with
the obligation so secured until such time as such obligation is no longer
secured by a Lien, except for Permitted Liens.
The covenant contained in this Section will be subject to the provision
for exempted indebtedness in Section 4.9.
SECTION 4.8 LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS.
34
Subject to the provisions of Article VIII (to the extent they are
applicable to the Securities of any series), the Company will not, nor will
it permit any Restricted Subsidiary to, enter into any arrangement with any
Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property (whether such Principal Property is now owned or
hereafter acquired), except for temporary leases for a term, including any
renewal, of not more than five years and except for leases between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries, which
Principal Property has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person (hereinafter, a "Sale and
Lease-Back Transaction"), unless either (i) the Company or such Restricted
Subsidiary would be entitled, in accordance with the provisions of Section
4.7 (other than provisions with respect to exempted Indebtedness), to incur
Indebtedness secured by a lien on such property without equally and ratably
securing the Securities, or (ii) the Company within 180 days after the
effective date of the Sale and Lease-Back Transaction applies an amount equal
to the Value of such transaction to the voluntary retirement of its Funded
Debt. For the purposes of this Article, "Value" shall mean an amount equal
to the greater of the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction, or the fair value in
the opinion of the Board of Directors of the leased property at the time of
entering into such Sale and Lease-Back Transaction. For the purposes of this
Article, "Funded Debt" shall mean indebtedness (including Securities)
maturing by the terms thereof more than one year after the original creation
thereof.
The covenant contained in this Section will be subject to the provision
for exempted indebtedness in Section 4.9.
SECTION 4.9 EXEMPTED INDEBTEDNESS.
Notwithstanding the provisions contained in Sections 4.7 and 4.8, the
Company and its Restricted Subsidiaries may issue, assume, suffer to exist or
guarantee Indebtedness secured by a lien which would otherwise be subject to
the limitation of Section 4.7, without securing the Securities, or may enter
into Sale and Lease-Back Transactions which would otherwise be subject to the
limitation of Section 4.8, without retiring Funded Debt, or enter into a
combination of such transactions, if the sum of (i) the principal amount of
all such Indebtedness incurred after the date hereof, and which would
otherwise be or have been prohibited by the limitations of Section 4.7 or 4.8
and (ii) the aggregate Value of all such Sale and Lease-Back Transactions
after the date hereof does not at any such time exceed 10% of the
consolidated total assets of the Company and its consolidated Subsidiaries as
shown in the audited consolidated balance sheet contained in the latest
annual report to the shareholders of the Company.
SECTION 4.10 WAIVER OF STAY; EXTENSION OF USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or
35
advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company from paying all or any portion of the
principal of, interest on or any Additional Amounts payable with respect to
the Securities as contemplated herein or in the Securities, wherever enacted,
now or at any time hereafter in force, or that may affect the covenants or
the performance of this Indenture; and (to the extent that it may lawfully do
so) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE V
SUCCESSORS
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC.
The Company will not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets in one
transaction or a series of related transactions or assign any of its
obligations under this Indenture or the Securities to, any Person unless:
(a) the entity formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, lease, conveyance or
other disposition or assignment shall have been made (the "Surviving
Entity"), is a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia;
(b) the Surviving Entity assumes by supplemental indenture in a form
satisfactory to the Trustee all of the obligations of the Company under the
Securities and this Indenture; and
(c) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company or any
assignment of its obligations under this Indenture or the Securities in
accordance with Section 5.1, the Surviving Entity
36
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation has been named as the Company herein, and, except in
the case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
"Event of Default" is hereby defined for all purposes of this Indenture
and with respect to any series of Securities (except where the term is
otherwise defined for specific purposes) as 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):
(a) the Company defaults in the payment of any installment of interest
on or any Additional Amounts payable in respect of any Security of that
series when and as the same shall become due and payable and such failure
continues for a period of 30 days;
(b) the Company defaults in the payment of the principal of any
Security of that series when and as the same shall become due and payable at
Stated Maturity, upon redemption or otherwise;
(c) the Company fails to perform or observe any of its other
covenants, conditions or agreements in this Indenture or in the Securities
(other than a covenant, condition or agreement a Default in whose performance
or whose breach is elsewhere in this Section specifically dealt with), and
such failure continues for a period of 90 days after the date on which
written notice of such Default has been given to the Company by the Trustee
or to the Company and to the Trustee by the Holders of not less than 25% of
the principal amount of the Securities of that series then outstanding under
this Indenture;
(d) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any of its
Subsidiaries in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law
or (ii) a decree or order adjudging the Company or any of its Subsidiaries a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any of its Subsidiaries under any applicable federal or state
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any of its
Subsidiaries or of any substantial part of their property, or ordering the
winding up or
37
liquidation of their 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 90 consecutive days; or
(e) the commencement by the Company or any of its Subsidiaries 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 the Company or any of its Subsidiaries to the entry of a decree or order
for relief in respect of the Company or any of its Subsidiaries 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 the
Company or any of its Subsidiaries, or the filing by the Company or any of
its Subsidiaries of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the
Company or any of its Subsidiaries to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any of
its Subsidiaries or of any substantial part of their property, or the making
by the Company or any of its Subsidiaries of an assignment for the benefit of
creditors, or the admission by the Company or any of its Subsidiaries in
writing of their inability to pay their debts generally as they become due,
or the taking of corporate action by the Company or any of its Subsidiaries
in furtherance of any such action.
(f) The Company must furnish to the Trustee a statement, detailing any
Defaults of which it is aware, within 5 days of becoming aware of the
occurrence of any Default.
SECTION 6.2 ACCELERATION.
If an Event of Default specified in Section 6.1(d) or (e) shall occur and
be continuing, then the principal of (or, with respect to a series of
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series), and any accrued and unpaid
interest on and any Additional Amounts payable in respect of the Securities
shall immediately become due and payable without any declaration or other act
on the part of the Trustee or any Securityholder. If one or more Events of
Default specified in Sections 6.1(a) through (c) with respect to any series
of Securities at the time outstanding shall occur and be continuing, then,
and in each and every such case, either the Trustee, by notice in writing to
the Company, or the Holders of not less than 25% of the principal amount of
the Securities of that series then outstanding, by notice in writing to the
Company and the Trustee, may declare due and payable, if not already due and
payable, the principal of (or, with respect to a series of Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) plus any accrued interest on and any Additional
Amounts payable in respect of all of the Securities of that series; and upon
any such declaration all such amounts upon such Securities shall become and
be immediately due and payable, anything in this
Indenture or in the Securities to the contrary notwithstanding. This
provision is subject to the condition that if, after any declaration of
acceleration and before Stated Maturity of the
38
principal with respect to Securities of any series, all arrears of interest
and any Additional Amounts and the expenses of the Trustee, its agents or
counsel shall be paid by or for the account of the Company, and all Defaults
(other than the payment of principal that has been declared due and payable)
have been cured to the satisfaction of the Trustee, then the Trustee shall,
upon the written request of the Holders of a majority in principal amount of
the Securities of that series, waive such a Default and rescind or annul the
declaration of acceleration; but no such waiver or rescission or annulment
shall extend to or affect any subsequent Default, or impair any right
consequent thereon.
SECTION 6.3 OTHER REMEDIES.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of, interest on or any Additional Amounts payable in
respect of the Securities of that series or to enforce the performance of any
provision of the Securities of that series or this Indenture. The Trustee
may maintain a proceeding even if it does not possess any of the Securities
of that series or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising
any right or remedy accruing upon any Event of Default shall not impair any
such right or remedy or constitute a waiver of or acquiescence in the Event
of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.4 WAIVER OF PAST DEFAULTS.
Provided the applicable series of Securities shall not then be due and
payable by reason of a declaration pursuant to Section 6.2, the Holders of a
majority in principal amount of the Securities of any series at the time
outstanding may on behalf of the Holders of all the Securities of such series
waive any past Default hereunder with respect to such series and its
consequences by providing written notice thereof to the Company and the
Trustee, except a Default (i) in the payment of interest on, any Additional
Amounts payable in respect of or the principal of any Security of such series
or (ii) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
outstanding Security of such series affected. In the case of any such
waiver, the Company, the Trustee and the Holders of the Securities of such
series shall be restored to their former positions and rights hereunder,
respectively; provided that no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities then
outstanding of any series may direct the time, method and place of conducting
any proceeding for any
39
remedy available to the Trustee or of exercising any power or trust
conferred upon the Trustee under this Indenture with respect to the
Securities of such series; provided, however, that subject to the provisions
of Sections 7.1 and 7.2, the Trustee shall have the right to decline to
follow any such direction if the Trustee, advised by counsel, determines that
the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith shall by Responsible Officers determine that the action
or proceeding so directed would involve the Trustee in liability or that the
Trustee is not satisfactorily indemnified from the costs thereof.
SECTION 6.6 LIMITATION ON SUITS BY HOLDERS.
No Holder of any Security of any series or any coupon appertaining
thereto shall have the right to pursue a remedy with respect to this
Indenture or the Securities unless:
(1) such Holder gives to the Trustee notice of a continuing Event of
Default with respect to Securities of that series;
(2) the Holders of at least a majority in a principal amount of the
Securities of that series make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense; and
(4) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer of security or indemnity.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security or coupon to receive payment of principal of, interest
on and any Additional Amounts payable with respect to the Security or coupon,
on or after the respective due dates expressed in the Security or coupon, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
the Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of principal,
interest and any Additional Amounts remaining unpaid, together with interest
on overdue principal and, to the extent lawful, interest on
40
overdue installments of interest and any Additional Amounts, in each case at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities and 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 and any other amounts due the Trustee under Section
7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
and the Securityholders allowed in any judicial proceedings relative to the
Company, its creditors or its property and the Trustee shall be entitled and
empowered to collect and receive any money or other property payable or
deliverable on any such claims and to distribute it, and any trustee,
receiver, liquidator, custodian or other similar official in any such
judicial proceedings is hereby authorized by each Securityholder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to Securityholders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Securityholder 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 any
claim of any Securityholder in such proceeding.
SECTION 6.10 APPLICATION OF MONEY COLLECTED.
Any money or property collected by the Trustee with respect to any series
of the Securities under this Article VI shall, subject to the provisions of
Article XIII, be paid out by the Trustee in the following order and, in the
case of the distribution of moneys on account of principal, interest or any
Additional Amounts, upon presentation of such Securities and coupons
appertaining to such Securities in respect of which monies have been
collected (except that the Trustee may waive presentation of Registered
Securities when interest alone is to be paid), and stamping thereon the
payment, or issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, and
reasonable compensation to the Trustee, its agents and counsel, and of all
other expenses, losses, and liabilities incurred, and all advances made, by
the Trustee including but not limited to all amounts due to the Trustee under
section 7.7 except as a result of its negligence or bad faith;
SECOND: In case the principal of the outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest on
and any Additional Amounts Payable with respect to such Securities, in the
order of the maturity of the installments of
41
such interest and Additional Amounts, with interest, to the extent lawful,
upon the overdue installments of interest and Additional Amounts at the rate
or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preferences;
THIRD: In case the principal of the outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for principal,
interest and any Additional Amounts, with interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in
such Securities on the overdue principal, and, to the extent lawful, on the
overdue installments of interest and Additional Amounts; and in case such
monies shall be insufficient to pay in full the whole amount so due and
unpaid upon such Securities, then to the payment of such principal, interest
and any Additional Amounts, ratably, without preference or priority of any
kind, to the aggregate of such principal and accrued and unpaid interest and
Additional Amounts; and
FOURTH: In case the Trustee shall retain possession of any funds after
all obligations of the Company hereunder have been fully paid and satisfied,
such funds shall be paid to the Company, its successors or assigns.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and the amount to be
paid.
SECTION 6.11 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, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' 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. This Section does not apply to a suit instituted by the
Trustee, a suit instituted by a Holder pursuant to Section 6.7 or a suit
instituted by Holders of more than 10% in principal amount of the Securities
then outstanding. This Section 6.11 shall be in lieu of Section 315(c) of
the TIA and said Section 315(c) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.12 DISCONTINUANCE OR ABANDONMENT OF PROCEEDINGS.
If the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture, and such proceedings shall have been discontinued or
abandoned because of waiver, or for any other reason, or shall have been
determined adversely to the Trustee or such Holder, then, and in any such
case, the Company and the Trustee and such Holder or
42
Holders shall each be restored to its former position and rights hereunder,
and all rights, remedies and powers of the Trustee and the Holders shall
continue as though no such proceedings had been taken.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee, subject to paragraph (e) below, shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any opinions or certificates which by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1;
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
43
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) 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 the Trustee shall have reasonable grounds to believe
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
determine the maximum interest rate permissible under applicable law.
(h) 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 and to the provisions of the TIA.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult
with counsel of its selection and the written advice of such counsel or any
Opinion of Counsel with respect to legal matters relating to this Indenture
and the Securities 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 accordance with the advice or opinion of such counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it hereunder; provided, however, that the Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
44
(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.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar or co-registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Securities; it shall not
be accountable for the Company's use of the proceeds from the sale of the
Securities; and it shall not be responsible for any statement of the Company
in this Indenture or in any document issued in connection with the sale of
the Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default occurs with respect to Securities of any series and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder of such series a notice of the Default within 90 days after it
occurs in the manner and to the extent provided in TIA 313(c), and otherwise
as provided in Section 14.2 hereof. Except in the case of a Default in
payment of the principal of, interest on and any Additional Amount payable
with respect to any Security (including payments pursuant to a redemption or
repurchase of the Securities pursuant hereto), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
The Trustee shall not be deemed to have knowledge of any Default or Event
of Default except (i) a Default under Section 6.1(a) or (b) so long as the
Trustee is Paying Agent or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or a Responsible Officer
charged with the administration of this Indenture shall have obtained actual
knowledge, and such notification shall not be deemed to include receipt of
information obtained in any report or other documents furnished under Section
4.4 of this Indenture, which reports and documents the Trustee shall have no
duty to examine.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
45
Within 60 days after each January 1 beginning with the January 1
following the date of this Indenture, the Trustee shall mail to each Holder
of a Registered Security a brief report dated as of such reporting date if
required by, and in compliance with, TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a copy
of each report at the time of its mailing to Securityholders shall be filed
with the Commission and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation
as shall be agreed to in writing from time to time between the Company and
the Trustee for all services rendered by it hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Company shall reimburse the Trustee upon request for
all reasonable disbursements, advances and expenses incurred or made by the
Trustee in accordance with any provision of this Indenture. Such expenses
shall include the reasonable compensation and the disbursements, advances and
expenses of the Trustee's agents and counsel, except to the extent any such
disbursement, advance or expense may be attributable to its negligence or bad
faith.
The Company shall indemnify the Trustee and its directors, officers,
agents and employees against any and all loss, liability, damage, claim or
expense (including attorneys' fees and expenses) incurred by it or such
officer, director, agent or employee in connection with the acceptance or
administration of its duties under this Indenture, except as set forth in the
next paragraph.
The Company need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay
the principal of, interest on or any Additional Amounts payable with respect
to particular Securities. The Company's payment obligations pursuant to this
Section 7.7 shall survive the resignation or replacement of the Trustee and
any discharge or defeasance under Sections 8.1 and 8.2.
When the Trustee incurs expenses after the occurrence of an Event of
Default specified in Section 6.1(d) or (e), the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
46
SECTION 7.8 REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company; provided,
however, no such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 7.8. The Holders of a
majority in principal amount of the then outstanding Securities may remove
the Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason (the Trustee in such event being referred to herein
as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under
this Indenture. The successor Trustee shall mail a notice of its succession
to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 7.7. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7
shall continue for the benefit of the retiring Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the then outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER.
47
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act shall
be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least a
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 DISCHARGE OF INDENTURE; DEFEASANCE.
(a) This Indenture shall cease to be of further effect with respect to a
series of Securities (except that the Company's obligations under Section 7.7
and the Trustee's and Paying Agent's obligations under Section 8.4 shall
survive) when (a) all outstanding Securities of such series theretofore
authenticated and issued have been delivered (other than destroyed, lost or
stolen Securities which have been replaced or paid pursuant to Section 2.6)
to the Trustee for cancellation and (b) the Company has paid all sums payable
hereunder.
(b) Subject to Sections 8.1(c), 8.2 and 8.5, the Company at any time may
terminate (i) all its obligations under the Securities of any series and this
Indenture with respect to such series of Securities ("legal defeasance
option") or (ii) its obligations under Article IV (except those obligations
set forth in Sections 4.1, 4.2 and 4.11 thereof) with respect to any series
of Securities ("covenant defeasance option"). The Company may exercise its
legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
(c) If the Company exercises its legal defeasance option, payment of the
Securities of the applicable series may not be accelerated because of an
Event of Default.
48
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's obligations
in Sections 2.3, 2.4, 2.5, 2.6, 7.7, 8.4 and 8.5 and Article XI and Article
XII shall survive until the Securities have been paid in full. Thereafter,
the Company's obligations in Sections 7.7 and 8.4 shall survive.
SECTION 8.2 CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to a series of Securities only if the
following conditions are satisfied:
(a) the Company has irrevocably deposited or caused to be deposited in
trust for the benefit of the Holders of such series with the Trustee or a
Paying Agent or a trustee satisfactory to the Trustee and the Company, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee and any such Paying Agent, (i) money in an amount
or Eligible Obligations sufficient, or (ii) U.S. Government Obligations or
Eligible Obligations that shall be payable as to principal and interest in
such amounts and at such times as are sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (without consideration
of any reinvestment of such interest), or (iii) any combination thereof in an
amount sufficient, to pay the principal of, interest on and any Additional
Amounts payable with respect to the outstanding Securities of such series on
the dates such installments are due to redemption or Stated Maturity, (b) the
trustee of the irrevocable trust shall have been irrevocably instructed to
pay such money or the proceeds of such U.S. Government Obligations or
Eligible Obligations to the Trustee and (c) the Trustee or Paying Agent shall
have been irrevocably instructed in writing to apply the deposited money and
the proceeds from U.S. Government Obligations or Eligible Obligations in
accordance with the terms of this Indenture and the terms of the Securities
of such series to the payment of principal of, interest on and any Additional
Amounts payable with respect to the Securities of such series;
(b) such deposit described in clause (a) of this Section 8.2 will not
result in a breach or violation of, or constitute a Default under, any other
agreement or instrument to which the Company is a party or by which it is
bound;
(c) no Default or Event of Default shall have occurred and be
continuing (i) as of the date of such deposit or (ii) insofar as Sections
6.1(d) and 6.1(e) are concerned at any time during the period ending on the
91st day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to the
Company in respect of such deposit (it being understood that the condition in
this clause (ii) is a condition subsequent and shall not be deemed satisfied
until the expiration of such period);
49
(d) the Company has paid or caused to be paid all sums currently due
and payable by the Company hereunder and under the Securities with respect to
such series including but not limited to all amounts due under section 7.7;
(e) such defeasance shall not cause or permit any Securities then
listed on any national securities exchange to be delisted;
(f) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for herein relating to the termination by the Company of its
obligations as provided in this Section 8.2 have been complied with;
(g) in the case of the legal defeasance option, the Company has
delivered to the Trustee either (i) a ruling received from the Internal
Revenue Service to the effect that, or (ii) an Opinion of Counsel by
recognized counsel who is not an employee of the Company stating that, since
the date first set forth hereinabove, there has been a change in the
applicable federal income tax law, and based upon either case (i) or (ii)
such Opinion of Counsel shall confirm that, the Holders of the Securities of
such series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its legal defeasance option
under this Section 8.2 and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such legal defeasance option had not been exercised; and
(h) in the case of the covenant defeasance option, the Company has
delivered to the Trustee either (i) a ruling received from the Internal
Revenue Service to the effect that, or (ii) an Opinion of Counsel by
recognized counsel who is not an employee of the Company stating that, the
Holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of the Company's exercise of
its covenant defeasance option under this paragraph and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such covenant defeasance option had not
been exercised.
SECTION 8.3. APPLICATION OF TRUST MONEY.
The Trustee or a trustee satisfactory to the Trustee and the Company
shall hold in trust money, U.S. Government Obligations or Eligible
Obligations deposited with it pursuant to Section 8.2. It shall apply the
deposited money and the money from U.S. Government Obligations and Eligible
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of, interest on and any Additional Amounts payable
with respect to the Securities.
SECTION 8.4. REPAYMENT TO COMPANY.
50
The Trustee and the Paying Agent shall promptly turn over to the Company
upon written request any money, U.S. Government Obligations or Eligible
Obligations held by them in trust pursuant to Section 8.2 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect such defeasance, in accordance with the provisions of this Indenture.
The Trustee or the Paying Agent shall pay promptly to the Company upon
written request any money held by them for the payment of principal, interest
or Additional Amounts that remains unclaimed for two years after the date
upon which such payment shall have become due, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law (except that with respect to any amounts then held by the Company in
trust as its own Paying Agent no such request need be given and at such time
the Company shall be discharged from its duties to hold such money in trust
as Paying Agent). After payment to the Company, Securityholders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money
shall cease.
SECTION 8.5. REINSTATEMENT OF COMPANY'S OBLIGATIONS.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Eligible Obligations in accordance with Section 8.2
by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture
and the Securities of the applicable series shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.2 until such time as
the Trustee or Paying Agent is permitted to apply all such money, U.S.
Government Obligations or Eligible Obligations in accordance with Section
8.2; provided, however, that if the Company has made any payment of interest
on, Additional Amounts payable with respect to or principal of any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money, U.S. Government Obligations or Eligible Obligations
held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVERS
51
SECTION 9.1. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto to amend this
Indenture or the Securities with respect to a particular series without prior
notice to or the consent of any Securityholder of such series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA as then in effect;
(4) to provide for uncertificated Securities in addition to or in place
of certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Internal Revenue Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2) of the Internal Revenue Code;
(5) to make any change that does not materially adversely affect the
legal rights of any Securityholder under this Indenture as then in effect;
(6) to secure the Securities and to make intercreditor arrangements
with respect to any such security, unless the incurrence of such obligations
or the security thereof is prohibited by this Indenture;
(7) to evidence or to provide for a replacement Trustee under Section
7.8; or
(8) to add to the covenants and agreements of the Company for the
benefit of all of the Holders of all of the Securities with respect to a
series (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are being included solely
for the benefit of such series) and to surrender any right or power herein
reserved to the Company.
After an amendment under this Section becomes effective, the Company
shall give to Securityholders a notice briefly describing the substance
thereof in the manner as provided in Section 14.2. The failure to give such
notice to all Securityholders, or any defect therein, shall not impair or
affect the validity of any supplemental indenture.
SECTION 9.2 WITH CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee may
enter into one or more supplemental indentures to amend this Indenture or the
Securities with respect to a particular series with the written consent of
the Holders of a majority of the principal
52
amount of the then outstanding Securities of such series. The Holders of a
majority in principal amount of the then outstanding Securities of a
particular series may waive compliance by the Company with any provision of
this Indenture or the Securities with respect to such series without prior
notice to any other Securityholder.
Notwithstanding the first paragraph of this Section 9.2, without the
consent of each Securityholder affected, an amendment or waiver under this
Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or change the time for payment of interest or
Additional Amounts, including default interest, on any Security;
(3) reduce the principal of or change the Stated Maturity of any
Security or alter the provisions with respect to redemption pursuant to
Section 3.5;
(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in this paragraph of this Section 9.2;
(6) make any change in Article XIV that adversely affects the rights of
any Securityholder; or
(7) make any change in Section 6.4 or 6.7.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver
but it shall be sufficient if such consent approves the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has been included solely for the
benefit of one or more series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Any amendment shall be effective upon certification to the Trustee by
the Company or an agent of the Company that such amendment has been
authorized by the Company and that the consent of the majority in principal
amount of the Securities has been obtained, unless such consents specify that
they shall become effective at a later date, in which case such amendment
shall become effective in accordance with the terms of such consent.
After an amendment or waiver under this Section becomes effective, the
Company shall give to Securityholders a notice briefly describing the
substance thereof in the manner as
53
provided in Section 14.2. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the
validity of any supplemental indenture.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities or waiver of the
provisions hereof or thereof shall be set forth in a supplemental indenture
that complies with the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of that Security or portion of the Security that evidences
the same debt as the consenting Holder's Security, even if notation of the
consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment
or waiver. If a record date is fixed, then notwithstanding the first
sentence of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such amendment or waiver or to
revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
After an amendment or waiver becomes effective, it shall bind every
Securityholder, subject to the fourth paragraph of Section 9.2 and unless it
makes a change described in any of clauses (1) through (7) of Section 9.2. In
that case, the amendment or waiver shall bind each Holder of a Security who
has consented to it and every subsequent Holder of a Security or a portion of
a Security that evidences the same debt as the consenting ▇▇▇▇▇▇'s Security.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES.
If a supplemental indenture changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security regarding the
changed terms and return it to the Holder. Alternatively, if the Company
shall so determine, the Company in exchange for all Securities may issue and
the Trustee shall authenticate new Securities of the same series that reflect
the changed terms.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS.
54
Upon the written request of the Company, accompanied by a Board
Resolution authorizing the execution of a supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of the Securityholders
if such consent shall be required under Section 9.2, the Trustee shall sign
any supplemental indenture authorized pursuant to this Article IX; provided
that the Trustee shall not be obligated to sign any supplemental indenture
that adversely affects the Trustee's rights, duties, liabilities or
immunities. In signing such supplemental indenture, the Trustee shall be
entitled to receive and, subject to Section 7.1, shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the Company
in accordance with its terms.
ARTICLE X
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 10.1 APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their maturity shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the
same to the Trustee with a directive that such Securities be cancelled.
Notwithstanding anything to the contrary contained in this Article X, in
connection with any repayment of Securities, the Company may arrange for the
purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the
Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged
to the extent such payment is so paid by such purchasers.
ARTICLE XI
SINKING FUNDS
SECTION 11.1 APPLICABILITY OF ARTICLE.
55
The provisions of this Article XI shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued pursuant
to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is referred to in this Article XI as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
SECTION 11.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to
the terms of such Securities as provided for by the terms of such series (1)
deliver outstanding Securities of such series (other than any of such
Securities previously called for redemption or any of such Securities in
respect of which cash shall have been released to the Company), together in
the case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to
the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities of any series in lieu of cash payments
pursuant to this Section 11.2, the principal amount of Securities of such
series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Company request, and such cash payment shall be held
by the Trustee or a Paying Agent for Securities of that series and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee
or such Paying Agent shall at the request of the Company from time to time
pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities purchased by the Company having an unpaid principal amount equal
to the cash payment requested to be released to the Company.
SECTION 11.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
56
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 11.2, and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so
credited and not theretofore delivered. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.3 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.4. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.5 and 3.6.
ARTICLE XII
CONVERSION OF SECURITIES
SECTION 12.1 APPLICABILITY OF ARTICLE.
The provisions of this Article XII shall be applicable to the Securities
of any series which are convertible into Common Stock or, if so provided in a
Board Resolution, Officers' Certificate or executed supplemental indenture
referred to in Section 2.1 by or pursuant to which the form and terms of the
Securities of such series were established, cash in lieu thereof, as provided
by the terms of the Securities of such series.
SECTION 12.2 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security to the Conversion
Agent at any time during usual business hours at its office or agency
maintained for the purpose as provided in Section 4.2, accompanied by a fully
executed written notice, in substantially the form set forth on the reverse
of the Security, that the Holder elects to convert such Security or a stated
portion thereof constituting a multiple of $1,000 in principal amount, and,
if such Security is surrendered for conversion during the period between the
close of business on any record date for such Security and the opening of
business on the related interest payment date and has not been called for
redemption on a Redemption Date within such period (or on such interest
57
payment date), accompanied also by payment of an amount equal to the interest
payable on such interest payment date on the portion of the principal amount
of the Security being surrendered for conversion. No interest shall be
payable on any Security called for redemption which is converted between the
record date and the opening of business of the next succeeding interest
payment date. Such notice shall also state the name or names (and address)
in which the certificate or certificates for shares of Common Stock shall be
issued (or to whom payment in cash in lieu of Common Stock shall be made).
Securities surrendered for conversion shall (if so required by the Company or
the Conversion Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Conversion Agent duly executed by, the Holder or his attorney duly
authorized in writing. As promptly as practicable after the receipt of such
notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 12.7, issue and deliver at such office
or agency to such Holder, or on his written order, a certificate or
certificates for the number of full shares of Common Stock issuable on
conversion of such Security in accordance with the provisions of such
Security and cash, as provided in Section 12.3, in respect of any fraction of
a share of Common Stock otherwise issuable upon such conversion or, if so
provided in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Section 2.1 by or pursuant to which the
form and terms of the Securities of such Series were established, cash in
lieu of shares of Common Stock. Such conversion shall be at the Conversion
Price in effect, and shall be deemed to have been effected, immediately prior
to the close of business on the date (herein called the "Date of Conversion")
on which such notice in proper form shall have been received by the
Conversion Agent and such Security shall have been surrendered as aforesaid,
and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable, if any, upon such
conversion shall be deemed to have become on the Date of Conversion the
holder or holders of record of the shares represented thereby; provided,
however, that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the Person or Persons in whose
name or names the certificate or certificates for such shares are to be
issued, if any, as the record holder or holders thereof for all purposes at
the opening of business on the next succeeding day on which such stock
transfer books are open but such conversion shall nevertheless be at the
Conversion Price in effect at the close of business on the date when such
Security shall have been so surrendered with the conversion notice in proper
form. In the case of conversion of a portion, but less than all, of a
Security, the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder thereof, at the expense of the
Company, a Security or Securities in the aggregate principal amount of the
unconverted portion of the Security surrendered. Except as otherwise
expressly provided in this Indenture, no payment or adjustment shall be made
for interest accrued on any Security (or portion thereof) converted or for
dividends or distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the
Company to redeem, purchase or repay such Security shall terminate upon
receipt by the Company of any notice of conversion of such Security.
Section 12.3 FRACTIONAL INTERESTS.
58
No fractions of shares or scrip representing fractions of shares shall be
issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the Securities so surrendered.
If any fraction of a share of Common Stock would, except for the provisions
of this Section 12.3, be issuable on the conversion of any Security or
Securities, the Company shall make payment in lieu thereof in cash equal to
the value of such fraction computed on the basis of the Last Sale Price of
one share of Common Stock on the most recent Trading Day prior to the Date of
Conversion. "Last Sale Price" on any Trading Day shall mean (i) the closing
price regular way (or, if no closing price is reported the average of the bid
and asked prices) as reported on the New York Stock Exchange Composite Tape,
or (ii) if on such Trading Day the Common Stock is not listed or admitted to
trading on such exchange, the closing price regular way (or, if no closing
price is reported the average of the bid and asked prices) on the principal
national securities exchange on which the Common Stock is listed or admitted,
or (iii) if not listed or admitted to trading on any national securities
exchange on such Trading Day, then the average of the closing bid and asked
prices as reported through the National Association of Securities Dealers,
Inc. on its NASDAQ National Market System or NASDAQ System or a similar
organization if NASDAQ is no longer reporting information, or (iv) if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted on such National Market System or NASDAQ System on such
Trading Day, then the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member
firm selected from time to time by the Company for that purpose, or (v) if
not quoted by any such organization on such Trading Day, the fair value of
such Common Stock on such Trading Day, as determined by the Board of
Directors. The term "Trading Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are
not traded on the applicable above mentioned exchanges or markets.
Section 12.4 ADJUSTMENT OF CONVERSION PRICE.
The "Conversion Price" for a Series of Securities shall be as set forth
in a Board Resolution, Officers' Certificate or executed supplemental
indenture referred to in Section 2.1 by or pursuant to which the form and
terms of the Securities of such Series were established, and shall be subject
to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a distribution
in shares of Common Stock to holders of Common Stock, (2) subdivide its
outstanding shares of Common Stock into a greater number of shares of Common
Stock, (3) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock or (4) issue by reclassification of its
Common Stock any shares of capital stock of the Company, the Conversion Price
in effect immediately prior to such action shall be adjusted so that the
Holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other capital
stock of the Company which he would
59
have owned immediately following such action had such Security been
converted immediately prior thereto. An adjustment made pursuant to this
subsection (a) shall become effective immediately, except as provided in
subsection (e) below, after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date
in the case of a subdivision, combination or reclassification. If as a
result of an adjustment made pursuant to this subsection (a), the Holder of
any Security thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of capital stock (including shares of
Common Stock and other capital stock) of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a
statement filed with the Trustee) shall determine the allocation of the
adjusted Conversion Price between or among shares of such classes of capital
stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all holders of
Common Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Common Stock or
Securities convertible into Common Stock at a price per share less than the
current market price per share (as determined pursuant to subsection (d)
below) of the Common Stock on the record date mentioned below, the Conversion
Price shall be adjusted to a price, computed to the nearest cent, so that the
same shall equal the price determined by multiplying:
(1) the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by
(2) a fraction, of which (i) the numerator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus (B) the number of shares
of Common Stock which the aggregate offering price of the total number of
shares of Common Stock (or the aggregate conversion price of the convertible
securities) so offered for subscription or purchase would purchase at such
current market price (determined by multiplying such total number of shares
by the exercise price of such rights or warrants and dividing the product so
obtained by such current market price), and of which (ii) the denominator
shall be (A) the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants, immediately prior to such issuance, plus
(B) the number of additional shares of Common Stock (or into which the
convertible securities are convertible) which are so offered for subscription
or purchase.
Such adjustment shall become effective immediately except as provided in
subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders of
Common Stock, evidences of indebtedness, equity securities (including equity
interests in the Company's Subsidiaries) other than common stock, or other
assets (other than cash dividends
60
paid out of surplus of the Company), or shall distribute to substantially all
holders of Common Stock rights or warrants to subscribe for securities (other
than those referred to in subsection (b) above) then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the date of such distribution by a fraction of which the numerator shall be
the current market price per share (determined as provided in subsection (d)
below) of the Common Stock on the record date mentioned below less the then
fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive evidence of such
fair market value) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of Common Stock, and
of which the denominator shall be such current market price per share of the
Common Stock. Such adjustment shall become effective immediately, except as
provided in subsection (e) below, after the record date for the determination
of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the Last Sale Prices for the 30 consecutive
Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 12.4 shall require that an
adjustment be made immediately following a record date, the Company may elect
to defer the effectiveness of such adjustment (but in no event until a date
later than the effective time of the event giving rise to such adjustment),
in which case the Company shall, with respect to any Security converted after
such record date and before such adjustment shall have become effective, (i)
defer paying any cash payment pursuant to Section 12.3 or issuing to the
Holder of such Security the number of shares of Common Stock and other
capital stock of the Company issuable upon such conversion in excess of the
number of shares of Common Stock and other capital stock of the Company
issuable thereupon only on the basis of the Conversion Price prior to
adjustment and (ii), not later than five Business Days after such adjustment
shall have become effective, pay to such Holder the appropriate cash payment
pursuant to Section 12.3 and issue to such Holder the additional shares of
Common Stock and other capital stock of the Company issuable on such
conversion.
(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment and provided, further, that
adjustment shall be required and made in accordance with the provisions of
this Article XII (other than this subsection (f)) not later than such time as
may be required in order to preserve the tax-free nature of a distribution to
the holders of Securities or Common Stock. All calculations under this
Article XII shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be.
61
(g) Anything in this Section 12.4 to the contrary notwithstanding, no
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for rights to
purchase Capital Stock pursuant to any future dividend or distribution which
the Company determines to be comparable in purpose and in effect to the
dividend and subsequent distribution of Rights contemplated by the Rights
Agreement and no adjustment need be made for a change in the par value or no
par value of the Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent an
Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness
of such adjustment, and (ii) mail or cause to be mailed a notice of such
adjustment to each Holder of Securities at his address as the same appears on
either the registry books of the Company or in the filings described in
Section 2.4. Anything in this Section 12.4 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Conversion
Price, in addition to those required by this Section 12.4, as it in its
discretion shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights or warrants to purchase stock
or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
Section 12.5 CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF MERGER,
CONSOLIDATION OR SALE OF ASSETS.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall
be entitled to receive stock, other securities or other assets (including
cash) with respect to or in exchange for Common Stock; or (b) any sale or
conveyance of all or substantially all of the property or business of the
Company as an entirety, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
consolidation, merger, sale or conveyance, execute and deliver to the Trustee
a supplemental indenture (which shall conform to the TIA as in force at the
date of the execution thereof) providing that the Holder of each convertible
Security then outstanding shall have the right to convert such Security into
the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock issuable upon
conversion of such Security immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article XII.
If, in the case of any such consolidation, merger, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon
by a holder of shares of Common Stock includes shares of stock or other
securities and property (including cash) of a corporation other than the
successor or purchasing corporation, as the case may be, in such
consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other
62
corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors
shall reasonably consider necessary by reason of the foregoing. The
provisions of this Section 12.5 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
Within 30 days after the execution of such supplemental indenture the
Company shall give notice of the execution of such supplemental
indenture, with respect to Registered Securities affected by such
supplemental indenture, by mailing a notice of the execution of such
supplemental indenture to each Holder of Registered Securities at such
Holder's address as it appears on the Securities register maintained by
the Registrar and, with respect to Bearer Securities affected by such
supplemental indenture, by publishing in an Authorized Newspaper notice
of the execution of such supplemental indenture on two separate days.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained
in any such supplemental indenture relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable
by Holders of Securities upon the conversion of their Securities after
any such consolidation, merger, sale or conveyance or to any adjustment
to be made with respect thereto, but, subject to the provisions of
Sections 7.1 and 7.2, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying
upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.
Section 12.6 NOTICE OF CERTAIN EVENTS.
If: (a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock otherwise than in
cash; or
(b) the Company shall authorize the granting to the holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or the sale or conveyance of all or substantially
all the property or business of the Company; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Securities as provided in
Section 4.2, and shall, with respect to Registered Securities convertible
into Common Stock, cause to be mailed to each Holder of such Registered
Securities, at such Holder's address as it shall appear on the Securities
-63-
register maintained by the Registrar and, with respect to Bearer
Securities convertible into Common Stock, cause to be published in an
Authorized Newspaper on two separate days, at least 20 days before the
date hereinafter specified (or the earlier of the dates hereinafter
specified, in the event that more than one date is specified), a notice
stating the date on which (1) a record is expected to be taken for the
purpose of such dividend, distribution or rights, or if a record is not
to be taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution or rights are to be
determined, or (2) such reclassification, change, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is
expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding-up.
Section 12.7 TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or
taxing authority thereof or therein in respect of the issue or delivery
of shares of Common Stock on conversion of Securities pursuant thereto;
provided, however, that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the
Holder of the Securities to be converted (or payment of cash in lieu
thereof to a Person other than such Holder) and no such issue or delivery
(or payment) shall be made unless and until the Person requesting such
issue or delivery (or payment) has paid to the Company the amount of any
such tax or has established, to the satisfaction of the Company, that
such tax has been paid. The Company extends no protection with respect
to any other taxes imposed in connection with conversion of Securities.
Section 12.8 COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the
conversion of convertible Securities from time to time as such Securities
are presented for conversion, provided, however, that nothing contained
herein shall be construed to preclude the Company from satisfying its
obligations in respect of the conversion of Securities by delivery of
repurchase shares of Common Stock which are held in the treasury of the
Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval
of any governmental authority under any Federal or state law before such
shares may be validly issued or delivered upon conversion, then the
Company covenants that it will in good faith and as expeditiously as
possible endeavor to secure such registration or approval, as the case
may be; provided, however, that nothing in this Section 12.8 shall be
deemed to affect in any way the
-64-
obligations of the Company to convert Securities into Common Stock as
provided in this Article XII.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock,
the Company will take all corporate action which may, in the Opinion of
Counsel, be necessary in order that the Company may validly and legally
issue fully paid and non-assessable shares of Common Stock at such
adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
Section 12.9 DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee, the Conversion Agent nor any agent of either
shall at any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the Officers'
Certificate referred to in Section 12.4(h), or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee, the Conversion Agent
nor any agent of either shall be accountable with respect to the validity
of value (or the kind or amount) or any shares of Common Stock, or of any
securities or property (including cash), which may at any time be issued
or delivered upon the conversion of any Security; and neither the
Trustee, the Conversion Agent nor any agent of either makes any
representation with respect thereto. Neither the Trustee, the Conversion
Agent nor any agent of either shall be responsible for any failure of the
Company to issue, register the transfer of or deliver any shares of
Common Stock or stock certificates or other securities or property
(including cash) upon the surrender of any Security for the purpose of
conversion or, subject to Sections 7.1 and 7.2, to comply with any of the
covenants of the Company contained in this Article XII.
Section 12.10 RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any Conversion Agent for the purpose
of paying the principal of and interest, if any, on any of the Securities
and which shall not be required for such purposes because of the
conversion of such Securities, as provided in this Article XII, shall
after such conversion be repaid to the Company by the Trustee or such
Conversion Agent.
Section 12.11 RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON
CONVERSION.
-65-
Each share of Common Stock issued upon conversion of Securities
pursuant to this Article XII shall be entitled to receive the appropriate
number of preferred share purchase rights (the "Rights"), if any, and the
certificates representing the Common Stock issued upon such conversion
shall bear such legends, if any, in each case as provided by and subject
to the terms of the Rights Agreement, dated as of June 11, 1986, as
amended as of August 21, 1990, as further amended as of May 31, 1996,
between the Company and Centerre Trust Company of St. Louis, as Rights
Agent (the "Rights Agreement"), as in effect at the time of such
conversion. Notwithstanding anything else to the contrary in this
Article XII, there shall not be any adjustment to the conversion
privilege or conversion rate as a result of (i) the distribution of
separate certificates representing the Rights, (ii) the occurrence of
certain events entitling holders of Rights to receive, upon exercise
thereof, Common Stock of the Company or Capital Stock of another
corporation or (iii) the exercise of such Rights in accordance with the
Rights Agreement.
ARTICLE XIII
SUBORDINATION
Section 13.1 SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees that, anything in this Indenture or
the Securities of any series to the contrary notwithstanding, the
Indebtedness evidenced by the Securities of each series is subordinated
and junior in right of payment to all Senior Indebtedness to the extent
provided herein, and each Holder of Securities of each series, by his
acceptance thereof, whether upon original issue or upon transfer or
assignment thereof, likewise covenants and agrees to the subordination
herein provided and shall be bound by the provisions hereof.
Subject to Section 13.4, if the Company shall default in the payment
of any principal of interest on or any Additional Amount payable in
respect of any Senior Indebtedness when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration
of acceleration or otherwise, then, upon written notice of such default
to the Company by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set off or otherwise) shall be made or agreed to
be made on account of the principal of, interest on or Additional Amounts
payable in respect of any of the Securities, or in respect of any
redemption, retirement, purchase or other acquisition of any of the
Securities other than those made in capital stock of the Company (or cash
in lieu of fractional shares thereof) pursuant to Article XII or
otherwise made in capital stock of the Company (or cash in lieu of
fractional shares thereof).
If (a) without the consent of the Company a court having jurisdiction
shall enter an order for relief with respect to the Company under the
Bankruptcy Laws or without the consent of the Company a court having
jurisdiction shall enter a judgment, order or decree
-66-
adjudging the Company a bankrupt or insolvent, or enter an order for
relief for reorganization, arrangement, adjustment or composition of or
in respect of the Company under the Bankruptcy Laws or applicable state
insolvency law, or (b) the Company shall institute proceedings for entry
of an order for relief with respect to the Company under the Bankruptcy
Laws or for an adjudication of insolvency, or shall consent to the
institution of bankruptcy or insolvency proceedings against it, or shall
file a petition seeking, or seek or consent to reorganization,
arrangement, composition or relief under the Bankruptcy Laws or any
applicable state law, or shall consent to the filing of such petition or
to the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or similar official (other than a custodian
pursuant to 8 Delaware Code (S) 226 or any similar statute under other
state laws) in respect of the Company or of substantially all of its
property, or the Company shall make a general assignment for the benefit
of creditors as recognized under the Bankruptcy Laws, then all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings and any Additional Amounts payable
in respect thereof) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be
made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with
respect to the Indebtedness evidenced by the Securities, to the payment
of all Senior Indebtedness then outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment)
that would otherwise (but for these subordination provisions) be payable
or deliverable in respect of the Securities of any series shall be paid
or delivered directly to the holders of Senior Indebtedness in accordance
with the priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings and any Additional Amounts payable
in respect thereof) shall have been paid in full. In the event of any
such proceeding, after payment in full of all sums owing with respect to
Senior Indebtedness, the Holder of the Securities, together with the
holders of any obligation of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid
principal of, interest on and any Additional Amounts payable in respect
of the Securities and such other obligations before any payment of other
distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or any obligations of the Company ranking
junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any
character, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with
respect to the Indebtedness evidenced by the Securities, to the payment
of all Senior Indebtedness then outstanding and to any securities issued
in respect thereof under any such plan of reorganization or
readjustment), shall be received by the Trustee or any Holder in
contravention of any of the terms hereof, such payment or distribution or
security shall be
67
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all such Senior Indebtedness in full. In the event of the
failure of the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
Nothing contained herein shall impair, as between the Company and the
Holders of Securities of each series, the obligation of the Company to pay to
such Holders the principal of, interest on or any Additional Amounts payable
with respect to such Securities or prevent the Trustee or the Holder from
exercising all rights, powers and remedies otherwise permitted by applicable
law or hereunder upon a Default or Event of Default hereunder, all subject to
the rights of the holders of the Senior Indebtedness to receive cash,
securities or other property otherwise payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full unless
the holders thereof shall have received cash, securities or other property
equal to the amount of such Senior Indebtedness then outstanding. Upon the
payment in full of all Senior Indebtedness, the Holders of Securities of each
series shall be subrogated to all rights of any holders of Senior Indebtedness
to receive any further payments or distributions applicable to the Senior
Indebtedness until the indebtedness evidenced by the Securities of such series
shall have been paid in full, and such payments or distributions received by
such Holders, by reason of such subrogation, of cash, securities or other
property that otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Securities of such series.
The provisions of this Section 13.1 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.2 RELIANCE ON CERTIFICATE OF LIQUIDATING AGENT; FURTHER EVIDENCE AS
TO OWNERSHIP OF SENIOR INDEBTEDNESS.
Upon any payment or distribution of assets of the Company, the Trustee and
the Holders shall be entitled to rely upon an order or decree issued by any
court of competent jurisdiction in which such dissolution or winding up or
liquidation or reorganization or
68
arrangement proceedings are pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XIII. In the absence of any such bankruptcy trustee, receiver,
assignee or other Person, the Trustee shall be entitled to rely upon a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) as evidence that such
Person is a holder of Senior Indebtedness (or is such a trustee or
representative). If the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distributions pursuant to
this Article XIII, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Article XIII, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 13.3. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article XIII or elsewhere in this Indenture, or
in any of the Securities, shall prevent (a) the Company at any time, except
during the pendency of any default in the payment of any principal of or
interest on any Senior Indebtedness as described in Section 13.1 or of any of
the events described in clause (a) and (b) of Section 13.1, from making
payments of the principal of or interest, if any, on the Securities, or (b) the
application by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to payments of the principal of or interest, if any, on the
Securities, if, at the time of such deposit, the Trustee or such payment agent,
as the case may be, did not have the written notice provided for in Section
13.5 of any event prohibiting the making of such deposit, or if, at the time of
such deposit (whether or not in trust) by the Company with the Trustee or
Paying Agent (other than the Company) such payment would not have been
prohibited by the provisions of this Article XIII, and the Trustee or any
Payment Agent shall not be affected by any notice to the contrary received by
it on or after such date.
SECTION 13.4. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or under any Senior
Indebtedness, other than any Senior Indebtedness as to which the provisions of
this Section 13.4 shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed, guaranteed or otherwise
created such Senior Indebtedness, shall not be deemed a default under Section
13.1 if (i) the Company shall be disputing its obligation to make such payment
or perform such obligation, and (ii) either (A) no final
69
judgment relating to such dispute shall have been issued against the Company
that is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, or (B) in the
event of a judgment that is subject to further review or appeal has been
issued, the Company shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained pending
such appeal or review.
SECTION 13.5. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION.
Anything in this Article XIII or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of existence of any facts that would prohibit the making of any
payment of money to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in Section
13.1 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; provided, however, that,
if the Trustee shall not have received the Officers' Certificate or notice
provided for in this Section 13.5 prior to the third Business Day preceding the
date upon which by the term hereof any money becomes payable (including,
without limitation, the payment of the principal of, interest on or any
Additional Amounts payable with respect to any Security), or in the event of
the execution of an instrument pursuant to Section 8.1 acknowledging
satisfaction and discharge of this Indenture, then if prior to the third
Business Day preceding the date of such execution, the Trustee or any Paying
Agent shall not have received with respect to such money the Officers'
Certificate or notice provided for in this Section 13.5, then, anything herein
contained to the contrary notwithstanding, the Trustee or such Paying Agent
shall have full power and authority to receive such money and apply the same to
the purpose for which it was received and shall not be affected by any notice
to the contrary which may be received by it on or after such date. The Company
shall give prompt written notice to the Trustee and to the Paying Agent of any
facts that would prohibit the payment of the money to or by the Trustee or any
Paying Agent and the Trustee shall to be charged with knowledge of the curing
of any default or the elimination of any other fact or condition preventing
such payment or distribution unless and until the Trustee shall have received
an Officers' Certificate to such effect.
SECTION 13.6. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as between such Holder and holders
of Senior Indebtedness as provided in this Article XIII and appoints the
Trustee its attorney-in-fact for any and all such purposes.
70
SECTION 13.7. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this Article
XIII with respect to any Senior Indebtedness that may at the time be held by
it, to the same extent as any other holder of Senior Indebtedness, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article XIII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.7.
SECTION 13.8. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article XIII shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if the Paying Agent
were named in this Article XIII in addition to or in place of the Trustee;
provided, however, that Sections 13.5 and 13.7 shall not apply to the Company
if it acts as Paying Agent.
SECTION 13.9. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS-OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have
or be otherwise charged with. The holders of Senior Indebtedness may, at any
time or from time to time and in their absolute discretion, change the manner,
place or terms of payment, change or extend the time of payment of, or renew or
alter, any such Senior Indebtedness, or amend or supplement any instrument
pursuant to which any such Senior Indebtedness is issued or by which it may be
secured, or release any security therefor, or exercise or refrain from
exercising any other of their rights under the Senior Indebtedness, including,
without limitation, the waiver of default thereunder, all without notice to or
assent from the Holders of the Securities or the Trustee and without affecting
the obligations of the Company, the Trustee or the Holders of Securities under
this Article XIII.
SECTION 13.10. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
the Senior Indebtedness, and shall not be liable to any such holders if it
shall mistakenly pay over or distribute money or assets to Securityholders or
the Company. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligation as
are specifically set forth in this Article XIII and no implied
71
covenants or obligations with respect to holders of Senior Indebtedness shall
be read into the Indenture against the Trustee.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of subsection (c) of Section 318 of the TIA, the
imposed duties shall control.
SECTION 14.2. NOTICES.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or by registered or certified
mail (postage prepaid, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, addressed as follows:
If to the Company:
Kellwood Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Trustee:
________________________
_________________________
_________________________
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the others may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication to the Company shall be deemed to have been
duly given or made at the time delivered by hand if personally delivered; five
calendar days after mailing if sent by registered or certified mail; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
72
Any notice or communication to the Trustee shall be deemed to have
been given or made upon receipt.
Any notice or communication to a Holder of a Registered Security
shall be mailed by first-class mail to such Securityholder's address
shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Securityholder or any defect in it shall not affect
its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Any notice to be given to a Holder of Bearer Securities shall be
given by publication in an Authorized Newspaper on two separate days
within the time prescribed.
Section 14.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
Section 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each party making such certificate or opinion
has read such covenant or condition;
73
(b) 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;
(c) a statement that, in the opinion of each such party, such party
has made such examination or investigation as is necessary to enable such
party to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such
party, such condition or covenant has been complied with;
provided, however, that with respect to matters of law, an Officers'
Certificate may be based upon an Opinion of Counsel, unless the signers
know, or in the exercise of reasonable care should know, that such
Opinion of Counsel is erroneous, and provided, further, that with respect
to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials, unless the signer knows,
or in the exercise of reasonable care should know, that any such document
is erroneous.
Section 14.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting
of Securityholders. The Registrar and the Paying Agent may make
reasonable rules for their functions.
Section 14.7 LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no
interest on the amount payable on such payment date shall accrue for the
intervening period.
Section 14.8 NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver
and release are part of the consideration for the issue of Securities.
74
Section 14.9 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 14.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 14.11 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 14.12 SEVERABILITY.
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 14.3 MULTIPLE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this Indenture.
Section 14.4 TABLE OF CONTENTS; HEADINGS.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions
hereof.
Section 14.15 SECURITIES IN FOREIGN CURRENCIES.
Wherever this Indenture provides for any action by, or the
determination of any of the rights of, Holders of Securities of any
series in which not all of such Securities are denominated in the same
currency, or any distribution to Holders of Securities, in the absence of
any provision to the contrary in the form of Security of any particular
series, any amount in respect of any a Security denominated in a currency
other than United States dollars shall be treated for any such action,
determination or distribution as that amount of United States dollars
that could be obtained for such amount on such reasonable basis of
exchange and as of
75
such date as the Company may specify in a written notice to the Trustee,
or in the absence of such notice, as the Trustee may determine.
76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be affixed
hereto and attested, all as of the date first above written.
KELLWOOD COMPANY
By
------------------------
Name:
Title:
[ Seal]
Attest:
------------------------------
Name:
Title:
_________________________
By
-----------------------
Name:
Title:
[Seal]
Attest:
------------------------------
Name:
Title:
77