EXHIBIT 4.4
RALCORP HOLDINGS, INC.
ISSUER
AND
THE FIRST NATIONAL BANK
OF CHICAGO
TRUSTEE
INDENTURE
DATED AS OF SEPTEMBER 23, 1994
----------------------------------------------------
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of September 23, 1994
Trust Indenture Act Section Indenture Section(1)/
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310 (a)(1)(2)(5) 6.9
(a)(3) and (4) Not Applicable
(b) 6.8, 6.10, 11.4
(c) Not Applicable
311 (a) *
(b) *
(c) Not Applicable
312 (a) *
(b) *
(c) *
313 (a) *
(b) *
(c) 4.3
(d) 4.3
314 (a) 4.2
(b) Not Applicable
(c) *
(d) Not Applicable
(e) *
(f) *
315 (a) *
(b) *
(c) *
(d) *
(e) *
316 (a)(1) *
(a)(2) Not Applicable
(b) 5.7
(c) Not Applicable
317 (a) 5.2
(b) 3.4
318 11.7
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
- ----------------------
1/ Provisions marked by an asterisk are not included in the Indenture as
permitted by the Trust Indenture Reform Act of 1990.
TABLE OF CONTENTS
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PAGE
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PARTIES 1
RECITALS 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE ONE
DEFINITIONS
Section 1.1 Certain Terms Defined 1
Attributable Debt 1
Board of Directors 2
Brussels Business Day 2
Business Day 2
Capitalized Lease Obligations 2
Commission 2
Component Currency 2
Consolidated Net Equity 2
Consolidated Net Tangible Assets 2
Consolidated Total Assets 2
Conversion Date 2
Corporate Trust Office 2
Coupon 2
Coupon Security 2
Credit Agreement 3
Defeasance 3
Depositary 3
Dollar 3
Dollar Equivalent of the ECU 3
Dollar Equivalent of the Foreign Currency 3
ECU 3
European Communities 3
Events of Default 3
Exchange Rate Officer's Certificate 3
Foreign Currency 3
Fully Registered Security 3
GAAP 3
Global Security 3
Guaranty Obligations 4
Holder, Holder of Securities, Securityholder 4
Indebtedness 4
Indenture 4
Investment 4
Issuer 4
Issuer Request or Issuer Order 4
Market Exchange Rate 4
Mortgage 4
Officers' Certificate 4
Official ECU Exchange Rate 4
Opinion of Counsel 5
Original issue date 5
Outstanding 5
Paying Agent 5
Permitted Lien 5
Person 5
Place of Payment 5
Principal 5
Principal Property 5
Registered Holder 5
Registered Security 6
Responsible Officer 6
Restricted Subsidiary 6
Sale and Lease-Back Transaction 6
Security, Securities 6
Specified Amount 6
Stated Maturity 6
Subsidiary 6
Trustee 6
Trust Indenture Act 6
United States of America 6
Unregistered Security 6
Valuation Date 6
vice president 6
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally 7
Section 2.2 Form of Trustee's Certificate of Authentication 7
Section 2.3 Amount Unlimited; Issuable in Series 7
Section 2.4 Authentication and Delivery of Securities 8
Section 2.5 Execution of Securities 9
Section 2.6 Certificate of Authentication 10
Section 2.7 Denomination and Date of Securities; Payments of Interest 10
Section 2.8 Registration, Transfer and Exchange 12
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 13
Section 2.10 Cancellation of Securities; Destruction Thereof 14
Section 2.11 Temporary Securities 14
Section 2.12 Currency and Manner of Payments in Respect of Securities 15
Section 2.13 Compliance with Certain Laws and Regulations 18
Section 2.14 Securities Issuable in the Form of a Global Security 18
Section 2.15 Appointment of Agents with Respect to Certain Calculations 19
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest 20
Section 3.2 Offices for Payments, etc. 20
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee 20
Section 3.4 Paying Agents 20
Section 3.5 Written Statement to Trustee 21
Section 3.6 Limitation on Liens 21
Section 3.7 Limitation on Sale and Lease-Back Transactions 22
Section 3.8 Additional Amounts 23
Section 3.9 Limitations on Restricted Subsidiary Debt 24
Section 3.10 Corporate Existence 24
Section 3.11 Waiver of Certain Covenants 24
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Securityholders Lists 25
Section 4.2 Reports by the Issuer 25
Section 4.3 Reports by the Trustee 25
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of 25
Maturity; Waiver of Default
Section 5.2 Collection of Indebtedness by Trustee; 27
Trustee May Prove Debt
Section 5.3 Application of Proceeds 28
Section 5.4 Suits for Enforcement
Section 5.5 Restoration of Rights on Abandonment of Proceedings 29
Section 5.6 Limitations on Suits by Securityholders 29
Section 5.7 Unconditional Right of Securityholders to 30
Institute Certain Suits
Section 5.8 Powers and Remedies Cumulative; Delay or 30
Omission Not Waiver of Default
Section 5.9 Control by Securityholders 30
Section 5.10 Waiver of Past Defaults 31
Section 5.11 Trustee to Give Notice of Default, But May 31
Withhold in Certain Circumstances
Section 5.12 Right of Court to Require Filing of Undertaking 31
to Pay Costs
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During 32
Default; Prior to Default
Section 6.2 Certain Rights of the Trustee 33
Section 6.3 Trustee Not Responsible for Recitals, Disposition of 33
Securities or Application of Proceeds Thereof
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc. 34
Section 6.5 Moneys Held by Trustee 34
Section 6.6 Compensation and Indemnification of Trustee and its 34
Prior Claim
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc. 34
Section 6.8 Disqualification; Conflicting Interests 35
Section 6.9 Persons Eligible for Appointment as Trustee 35
Section 6.10 Resignation and Removal; Appointment of Successor Trustee 35
Section 6.11 Acceptance of Appointment by Successor Trustee 36
Section 6.12 Merger, Conversion, Consolidation or Succession to 37
Business of Trustee
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders 37
Section 7.2 Proof of Execution of Instruments and of Holding 38
of Securities
Section 7.3 Holders to be Treated as Owners 38
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding 38
Section 7.5 Right of Revocation of Action Taken 38
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of 39
Securityholders
Section 8.2 Supplemental Indentures With Consent of Securityholders 40
Section 8.3 Effect of Supplemental Indenture 40
Section 8.4 Documents to Be Given to Trustee 41
Section 8.5 Notation on Securities in Respect of Supplemental 41
Indentures
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., on Certain Terms 41
Section 9.2 Successor Corporation Substituted 41
Section 9.3 Opinion of Counsel to Trustee 42
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Issuer's Option to Effect Defeasance or Covenant Defeasance 42
Section 10.2 Defeasance and Discharge 42
Section 10.3 Covenant Defeasance 42
Section 10.4 Conditions to Defeasance or Covenant Defeasance 43
Section 10.5 Deposited Money and U.S. Government Obligations 44
to be Held in Trust; Miscellaneous Provisions
Section 10.6 Reinstatement 45
Section 10.7 Return of Moneys Held by Trustee 45
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers and Directors 45
of Issuer Exempt from Individual Liability
Section 11.2 Provisions of Indenture for Sole Benefit of Parties 45
and Securityholders
Section 11.3 Successors and Assigns of Issuer Bound by Indenture 46
Section 11.4 Notices and Demands on Issuer, Trustee and Securityholders 46
Section 11.5 Officers' Certificates and Opinions of Counsel; 46
Statements to be Contained Therein
Section 11.6 Payments Due on Saturdays, Sundays and Holidays 47
Section 11.7 Conflict of Any Provision of Indenture with Trust 47
Indenture Act of 1939
Section 11.8 New York Law to Govern 47
Section 11.9 Counterparts 47
Section 11.10 Effect of Headings 47
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article 47
Section 12.2 Notice of Redemption; Partial Redemptions 48
Section 12.3 Payment of Securities Called for Redemption 48
Section 12.4 Exclusion of Certain Securities from Eligibility 49
for Selection for Redemption
Section 12.5 Mandatory and Optional Sinking Funds 49
Section 12.6 Repayment at the Option of the Holders 51
ARTICLE THIRTEEN
GUARANTEE
Section 13.1 Issuer's Option to Have Securities Guaranteed 51
Section 13.2 Subsidiary Guarantors 51
Section 13.3 Subsidiary Guarantee 51
Section 13.4 Execution and Delivery of Guarantee 53
Section 13.5 Guarantors May Consolidate, Etc. on Certain Terms 53
Section 13.6 "Trustee" to Include Paying Agent 54
TESTIMONIUM 54
SIGNATURES 54
ACKNOWLEDGMENTS 56
EXHIBIT A 57
THIS INDENTURE, dated as of September 23, 1994, among RALCORP HOLDINGS,
INC., a Missouri corporation (the "Issuer"), Beech-Nut Nutrition Corporation,
Bremner, Inc., Keystone Resorts Management, Inc., and Ralston Foods, Inc. (as
Guarantors) and The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, as Trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Issuer and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders from time to time of
the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act or the definitions of
which in the Securities Act of 1933 are referred to in the Trust Indenture Act,
including terms defined therein by reference to the Securities Act of 1933, or
the Investment Company Act of 1940 (except as herein otherwise expressly
provided or unless the context otherwise clearly requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and the term
"GAAP" means such accounting principles as are generally accepted in the United
States at the time of any computation. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole, as supplemented and amended from time to time, and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Attributable Debt" means, as to any particular lease under which the
Company or any Restricted Subsidiary is at the time liable, at any date as of
which the amount thereof is to be determined, the total net amount of rent
required to be paid by the Company or any Restricted Subsidiary under such lease
during the remaining term thereof, discounted from the respective due dates
thereof to such date at the weighted average rate per annum borne by the
Securities compounded annually. The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate amount of the rent
payable by the lessee with respect to such period after excluding amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease which is
terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but not rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
"Board of Directors" means either the Board of Directors or any committee
of the Board of Directors of the Issuer duly authorized to act hereunder.
"Brussels Business Day" means any day other than a day on which banking
institutions in Brussels, Belgium, are authorized or required by law to close.
"Business Day" means, with respect to any Place of Payment, except as may
otherwise be provided in the form of Securities of any particular series, each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the
Corporate Trust Office or banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.
"Capitalized Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Component Currency" has the meaning specified in Section 2.12.
"Consolidated Equity" means, at any time for the Issuer and its
Subsidiaries, an amount calculated as the Issuer's equity determined on a
consolidated basis for the Issuer and its Subsidiaries in conformity with GAAP.
"Consolidated Net Earnings" means, at any time, net earnings after taxes
for the Company and its subsidiaries, on a consolidated basis, as determined in
accordance with GAAP.
"Consolidated Net Tangible Assets" means the aggregate of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom all current liabilities for (i) notes and loans payable, (ii) current
maturities of long-term debt and (iii) current maturities of obligations under
capital leases, less all goodwill, trade names, trademarks, patents, unamortized
debt discount and other like intangibles, all as set forth on the most recent
balance sheet of the Company and its Subsidiaries and computed in accordance
with GAAP.
"Consolidated Revenues" means, at any time, net sales of the Company and
its subsidiaries, on a consolidated basis, as determined in accordance with
GAAP.
"Consolidated Total Assets" means, at any time, all items which, in
accordance with GAAP, would be classified as assets on a consolidated balance
sheet of the Issuer and its Subsidiaries.
"Conversion Date" has the meaning specified in Section 2.12.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126.
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"Coupon," means any interest coupon appertaining to any Security.
"Coupon Security" means any Security authenticated and delivered with one
or more Coupons appertaining thereto.
"Credit Agreement" means the Credit Agreement dated March 30, 1994 entered
into by Ralston Purina Company with a syndicate of commercial banks and assigned
to the Issuer and comprised of a $200 million revolving credit arrangement and a
$250 million term loan both with a maturity date of March 31, 1999.
"Defeasance" has the meaning specified in Section 10.2.
"Depositary" means, unless otherwise specified by the Issuer pursuant to
either Section 2.3 or 2.14, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered under the Securities and Exchange Act of
1934, as amended, or other applicable statute or regulation.
"Dollar" means the coin or currency of the United States of America which
as of the time of payment is legal tender for the payment of public and private
debts.
"Dollar Equivalent of the ECU" has the meaning specified in Section 2.12.
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 2.12.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth the applicable Official ECU Exchange Rate and the Dollar or
Foreign Currency amounts payable on the basis of such Official ECU Exchange Rate
in respect of the principal of and interest on Registered Securities, sent (in
the case of a telex) or signed (in the case of a certificate) by the treasurer
or any assistant treasurer of the Issuer, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any country
other than the United States.
"Fully Registered Security" means any Security registered as to principal
and interest, if any.
"GAAP" means generally accepted accounting principles in the United States
at the time of any computation.
"Global Security" means a Security issued to evidence all or a part of any
series of Securities which is executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to an Issuer
Order, which shall be registered in the name of the Depositary or its nominee.
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"Guarantee" means, individually and collectively, the guarantees given by
the Guarantors pursuant to Article Thirteen, including a notation in the
Securities substantially in the form attached hereto as Exhibit A.
"Guarantee Date" means the date of the execution and delivery of a
Guarantee.
"Guarantee Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect.
"Guarantor" means any Subsidiary (or successor of such Subsidiary) of the
Company which executes a Guarantee.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean the holder of an Unregistered Security or a Registered Holder of a
Registered Security and, when used with respect to any Coupon, means the holder
thereof.
"Indebtedness", with respect to any person, means (i) all indebtedness, of
such Person for borrowed money, (ii) all assets or services which in accordance
with GAAP would be shown to be a liability of such Person (or on the liability
side of a balance sheet of such Person), (iii) indebtedness of such person
created or arising under any conditional sale or title retention agreement, (iv)
the principal portion of all obligations of such person under Capital Leases,
(v) the maximum available amount of all letters of credit or acceptances issued
or created for the account of such Person, (vi) all Guaranty Obligations of such
Person with respect to Indebtedness of another entity, (vii) all Indebtedness of
another entity secured by a Lien on any Property of such person, whether or not
such Indebtedness has been assumed by such person and (viii) all Indebtedness of
any partnership or joint venture (except for any such Indebtedness with respect
to which recourse by the holder thereof is limited to the assets of such
partnership or joint venture) where such person is a general partner, net of any
assets of such partnership or joint venture.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Issuer" means Ralcorp Holdings, Inc., and, subject to Article Nine, its
successors and assigns.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of the Issuer by its Chairman of the Board, its Vice Chairman of the
Board, a Chief Executive Officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Market Exchange Rate" has the meaning specified in Section 2.12.
"Mortgage" has the meaning specified in Section 3.6.
"Officers' Certificate" means a certificate signed by the president or any
vice president and by the treasurer, secretary or an assistant secretary of the
Issuer, and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5.
"Official ECU Exchange Rate" applicable to any currency with respect to any
payment to be made hereunder means the exchange rate between the ECU and such
currency reported by the Commission of the European Communities (currently based
on the rates in effect at 2:30 p.m.,
-4-
Brussels time, on the relevant exchange markets) or if such exchange rate ceases
to be so reported, then such exchange rate shall be determined by the Trustee
using, in its sole discretion and without liability on its part, quotations from
one or more major banks in New York City or such other quotations as the Trustee
shall deem appropriate, on the applicable record date.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer. Each such opinion shall
include the statements provided for in Section 11.5, if and to the extent
required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the holders of such
Securities (if the Issuer shall act as its own paying agent), provided that if
such Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
"Paying Agent" means any Person (which may include the Issuer) authorized
by the Issuer to pay the principal of or interest, if any, on any Security on
behalf of the Issuer.
"Permitted Lien" has the meaning specified in Section 3.6.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and interest, if any, on the
Securities of that series are payable as specified pursuant to Section 3.2.
"Principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any".
"Principal Property" means any real property, manufacturing plant,
processing plant, office building, warehouse or other physical facility, or any
other like depreciable or depletable asset of the Company or any Subsidiary,
whether owned at the date of this Indenture or thereafter acquired, with a gross
book value in excess of 2% of Consolidated Net Tangible Assets, other than
properties that in
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the opinion of the Board of Directors of the Issuer are not of material
importance to the total business conducted by the Issuer and its Restricted
Subsidiaries, as a whole.
"Registered Holder" when used with respect to a Registered Security means
the person in whose name such Security is registered in the Security register.
"Registered Security" means any Security registered in the Security
register.
"Responsible Officer" when used with respect to the Trustee shall mean any
officer in the Corporate Trust Services Division (or any successor group) of the
Trustee including any vice president, assistant vice president, assistant
secretary, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Issuer substantially
all of the assets of which are located in the United States (excluding
territories or possessions).
"Sale and Lease-Back Transaction" has the meaning specified in Section 3.7.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture.
"Specified Amount" has the meaning specified in Section 2.12.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation more than 50% of whose voting stock is
at the time owned by the Issuer directly or indirectly by or through
Subsidiaries, and (ii) any partnership, association, joint venture or other
entity in which the Issuer directly or indirectly through Subsidiaries has more
than 50% equity interest at any time. The term "'voting stock" means outstanding
shares of stock having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power
because of default in dividends or some other default.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Six, any successor trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, and as in force at the date as of which
this Indenture was originally executed.
"United States of America" means the fifty states constituting the United
States of America as of the date of this Indenture.
"Unregistered Security" means any Security not registered as to principal.
"Valuation Date" has the meaning specified in Section 2.12.
"vice president" when used with respect to the Issuer or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title of "vice president".
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ARTICLE TWO
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series and the Coupons,
if any, shall be substantially in such form or forms (not inconsistent with this
Indenture) as shall be established by or pursuant to a resolution of the Board
of Directors or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture (the provisions of which shall be
appropriate to reflect the terms of each series of Securities, including the
currency or denomination, which may be Dollars, Foreign Currency or ECU) and may
have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any
rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons, if any.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
The Guarantees, if any, to be endorsed on the Securities of any series
shall be substantially in the form attached hereto as Exhibit A.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By:________________________________
Authorized Officer
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.8, 2.9, 2.11, 2.14 or 12.3);
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(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(5) the place or places where the principal and interest on Securities
of the series shall be payable (if other than as provided in Section 3.2);
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, the price or prices at which, the period or
periods within which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Issuer, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(8) the issuance as Registered Securities or Unregistered Securities
or both, and the rights of the Holders to exchange Unregistered Securities
for Registered Coupon Securities or Fully Registered Securities of the
series or to exchange Registered Securities of the series for Unregistered
Securities of the series and the circumstances under which any such
exchanges, if permitted, may be made;
(9) if other than denominations of $1,000 and any multiple thereof,
the denominations, which may be in Dollars, any Foreign Currency or ECU, in
which Securities of the series shall be issuable;
(10) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for such Global Security or Securities;
(11) any addition to or change in (a) the Events of Default or (b)
covenants set forth in Article Three which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders
of such Securities to declare the principal amount thereof due and payable
pursuant to Section 5.1.
(12) any other terms or conditions upon which the Securities of the
series are to be issued (which terms shall not be inconsistent with the
provisions of this Indenture);
(13) any trustees, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such
series; and
(14) whether the Securities of the series shall be entitled to the
benefit of the Guarantees set forth in Article Thirteen.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the
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same time, and unless otherwise provided, a series may be reopened for issuances
of additional Securities of such series.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. At any time and from
time to time after the execution and delivery of this Indenture, the Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver such Securities to or upon the Issuer
Order without any further action by the Issuer. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive and
(subject to Section 6.1) shall be fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board of
Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of Directors
relating to such series, in each case certified by the secretary or an
assistant secretary of the Issuer;
(3) an executed supplemental indenture, if any;
(4) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.1 and 2.3, respectively, and
prepared in accordance with Section 11.5;
(5) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Issuer;
(c) that all laws and requirements in respect of the execution
and delivery by the Issuer of the Securities have been complied with;
(d) that the Indenture and any supplemental indenture has been
duly authorized, executed and delivered by and constitutes the valid
and binding obligation of, the Issuer; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities shall be signed on
behalf of the Issuer by both (a) the chairman of its Board of Directors or any
vice chairman of its Board of Directors or its president or any vice president
and (b) by its treasurer or any assistant treasurer or its secretary or
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any assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee. Any Coupons attached to any Unregistered Security
shall be executed on behalf of the Issuer by the manual or facsimile signature
of any such officer of the Issuer.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons shall cease to be such officer before the Security or
Coupon so signed shall be authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities and Coupons
appertaining thereto as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the
manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
The Trustee shall not authenticate or deliver any Unregistered Security
until any matured Coupons appertaining thereto have been detached and canceled,
except as otherwise provided or permitted by this Indenture.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST. The
Securities shall be issuable in denominations as shall be specified as
contemplated by Section 2.3. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any multiple thereof, which may be in
Dollars, any Foreign Currency or ECU, and interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The Securities shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest from the date and shall be payable on the dates, in each case, which
shall be specified as contemplated by Section 2.3.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid, in the case of
Registered Securities, to the person in whose name that Security (or one or more
predecessor Securities) is registered at the close of business on the regular
record date for the payment of such interest and, in the case of Unregistered
Securities, upon surrender of the Coupon appertaining thereto in respect of the
interest due on such interest payment date.
The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment
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date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for the purpose of the Section) shall forthwith cease to be
payable to the Registered Holder on the relevant regular record date by virtue
of his having been such Holder; and such defaulted interest may be paid by the
Issuer, at its election, as provided in clause (1) or clause (2) below:
(1) The Issuer may elect to make payment of any defaulted interest to
the persons in whose names any such Registered Securities (or their
respective predecessor Securities) are registered at the close of business
on a special record date for the payment of such defaulted interest, which
shall be fixed in the following manner. The Issuer shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the
same time the Issuer shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such defaulted interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such defaulted interest
in respect of Registered Securities of such series which shall be not more
than 15 nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuer of such
special record date and, in the name and at the expense of the Issuer,
shall cause notice of the proposed payment of such defaulted interest and
the special record date thereof to be mailed, first class postage prepaid,
to each Registered Holder at his address as it appears in the Security
register, not less than 10 days prior to such special record date. Notice
of the proposed payment of such defaulted interest and the special record
date therefor having been mailed as aforesaid, such defaulted interest in
respect of Registered Securities of such series shall be paid to the person
in whose names such Securities (or their respective predecessor Securities)
are registered on such special record date and such defaulted interest
shall no longer be payable pursuant to the following clause (2).
(2) The Issuer may make payment of any defaulted interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that
series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuer to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Any defaulted interest payable in respect of any Security of any series
which is an Unregistered Security shall be payable pursuant to such procedures
as may be satisfactory to the Trustee in such manner that there is no
discrimination as between the Holders of Registered Securities and other
Securities of the same series, and notice of the payment date therefor shall be
given by the Trustee, in the name and at the expense of the Issuer, by
publication at least once in a newspaper of general circulation in New York, New
York.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 a register or registers in which,
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subject to such reasonable regulations as it may prescribe, it will register,
and will register the transfer of, Registered Securities as in this Article
provided. Such register shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open for
inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series in
authorized denominations for a like aggregate principal amount.
Subject to Section 2.14, at the option of the Holder thereof, Securities of
a series, whether Registered Securities or Unregistered Securities, which by
their terms are registerable as to principal only or as to principal and
interest, may, to the extent and under the circumstances specified pursuant to
Section 2.3, be exchanged for Registered Coupon Securities or Fully Registered
Securities of such series, as may be issued by the terms thereof. At the option
of the Holder thereof, Securities of a series, whether Registered Securities or
Unregistered Securities, which by their terms provide for the issuance of
Unregistered Securities, may, to the extent and under the circumstances
specified pursuant to Section 2.3, be exchanged for Unregistered Securities of
such series. Securities so issued in exchange for other Securities shall be of
any authorized denomination and of like principal amount and stated maturity,
and shall be issued upon surrender of the Securities for which they are to be
exchanged and, in the case of Coupon Securities, together with all unmatured
Coupons and matured Coupons in default appertaining thereto, at the office of
Issuer provided for in Section 2.3 and upon payment, if the Issuer shall
require, of charges provided therein. Unregistered Securities of any series
issued in exchange for Registered Securities of such series between the regular
record date for such Registered Security and the next interest payment date will
be issued without the Coupon relating to such interest payment date, and
Unregistered Securities surrendered in exchange for Registered Securities
between such dates shall be surrendered without the Coupon relating to such
interest payment date. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, an Unregistered Security will not be delivered in
exchange for a Registered Security or Securities unless the Trustee receives a
certificate signed by the person entitled to delivery of such Security or other
items or documents fulfilling such conditions as shall be required by
regulations of the United States Department of the Treasury, or shall be
notified by the Issuer that such a certificate shall not be required by such
regulations; provided, however, that no such Unregistered Security shall be
delivered by the Trustee if the Trustee or such agent shall have, or shall have
been notified in writing by the Issuer that the Issuer has, actual knowledge
that such certificate is false.
Upon presentation for registration of any Unregistered Securities of any
series which by its terms is registerable as to principal, at the office or
agency of the Issuer to be maintained as provided in Section 3.2, such Security
shall be registered as to principal in the name of the Holder thereof and such
registration shall be noted on such Security. Any Security so registered shall
be transferable on the registry books of the Issuer upon presentation of such
Security at such office or agency for similar notation thereon, but such
Security may be discharged from registration by being in a like manner
transferred to bearer, whereupon transferability by delivery shall be restored.
Unregistered Securities shall continue to be subject to successive registrations
and discharges from registration at the option of the Holders thereof.
Unregistered Securities shall be transferable by delivery, except while
registered as to principal. Registration of any Coupon Security shall not effect
the transferability by delivery of the Coupons appertaining thereto which shall
continue to be payable to bearer and transferable by delivery.
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All Securities and Coupons issued upon any transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
and Coupons surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuer or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Security registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities, other than exchanges pursuant to
Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Issuer shall not be required (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of the selection of Securities for redemption under Article
Twelve or (ii) to register the transfer of or exchange any Security so selected
for redemption in whole or in part.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
All Securities issued upon any transfer or exchange of Securities shall
have endorsed thereon, if applicable to Securities of such series, a Guarantee
or Guarantees executed by the Guarantors.
None of the Issuer, the Trustee or any Paying Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In
case any temporary or definitive Security or Coupon shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the Issuer, the Trustee
shall authenticate and deliver, a new Security of the same series or Coupon,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security or Coupon, or in lieu of and substitution
for the Security or Coupon so destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Trustee and to any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon, the Issuer 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 Issuer 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), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and any agent of the
Issuer 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 Issuer
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and the Trustee and any agent of the Issuer 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 or Coupon issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, 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 of such series or Coupons duly authenticated and delivered hereunder.
All Securities or Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Every substitute Security of any series issued pursuant to the provisions
of this Section shall have endorsed thereon, if applicable to Securities of such
series, a Guarantee or Guarantees executed by the Guarantors.
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for any future credit against any payment in respect of a sinking
or analogous fund which have been otherwise acquired by Issuer and all Coupons
surrendered for payment or exchange, shall, if surrendered to the Issuer or any
agent of the Issuer or the Trustee, be delivered to the Trustee for cancellation
or, if surrendered to the Trustee, shall be canceled by it; and no Securities or
Coupons shall be issued in lieu thereof, except as expressly permitted by any of
the provisions of this Indenture. The Trustee shall destroy canceled Securities
and Coupons held by it and deliver a certificate of destruction to the Issuer.
If the Issuer shall acquire any of the Securities and Coupons, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities and Coupons unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series may be issued
as Registered Securities or Unregistered Securities with or without Coupons
attached thereto, of any authorized denomination, and substantially in the form
of the definitive Securities of such series but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
of such series a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series.
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All temporary Security of any series issued pursuant to the provisions of
this Section shall have endorsed thereon, if applicable to Securities of such
series, a Guarantee or Guarantees executed by the Guarantors.
SECTION 2.12 CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) With respect to Registered Securities denominated in Dollars or Foreign
Currency and with respect to Registered Securities denominated in ECU with
respect to which the Holders of such Securities have not made the election
provided for in paragraph (b) below, the following payment provisions shall
apply:
(1) Except as provided in subparagraph (a) (2) or in paragraph (e)
below, payment of the principal of any Registered Security will be made at
the Place of Payment by delivery of a check in the currency in which the
Security is denominated on the payment date against surrender of such
Registered Security, and any interest on any Registered Security will be
paid at the Place of Payment by mailing a check in the currency in which
the Securities were issued to the Person entitled thereto at the address of
such Person appearing on the Security register.
(2) Payment of the principal of and interest on such Security may
also, subject to applicable laws and regulations, be made at such other
place or places as may be designated by the Issuer by any appropriate
method.
(b) With respect to Registered Securities denominated in ECU, the following
payment provisions shall apply, except as otherwise provided in paragraphs (e)
and (f) below:
(1) The Board of Directors of the Issuer may provide with respect to
any series of such Securities that Holders shall have the option to receive
payments of principal of and interest on such Security in any of the
currencies which may be designated for such election in such Security by
delivering to the Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business on the
record date immediately preceding the applicable payment date. Such
election will remain in effect for such Holder until changed by the Holder
by written notice to the Trustee (but any such change must be made not
later than the close of business on the record date immediately preceding
the next payment date to be effective for the payment to be made on such
payment date and no such change may be made with respect to payments to be
made on any Security with respect to which notice of redemption has been
given by the Issuer pursuant to Article Twelve). Any Holder of any such
Security who shall not have delivered any such election to the Trustee not
later than the close of business on the applicable record date will be paid
the amount due on the applicable payment date in ECU as provided in
paragraph (a) of this Section 2.12. Payment of principal shall be made on
the payment date against surrender of such Securities. Payment of principal
and interest shall be made at the Place of Payment by mailing at such
location a check in the applicable currency to the Person entitled thereto
at the address of such Person appearing on the Security register.
(2) Payment of the principal of and interest on such Security may
also, subject to applicable laws and regulations, be made at such other
place or places as may be designated by the Issuer by any appropriate
method.
(c) Payment of the principal of and interest on any Unregistered Security
will be made at such place or places outside the United States as may be
designated by the Issuer by any appropriate method only in the currency in which
the Security is denominated (except as provided in paragraph ( e) below) on the
payment date against surrender of the Unregistered Security, in the case of
payment of principal, or the relevant Coupon, in the case of payment of
interest. Except as provided in
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paragraph (e) below, payment with respect to Unregistered Securities and Coupons
will be made by check, subject to any limitations on the methods of effecting
such payment as shall be specified in the terms of the Security established as
provided in Section 2.3 and as shall be required under applicable laws and
regulations. Payment of the principal of and interest on Unregistered Securities
may also, subject to applicable laws and regulations, be made at such other
place or places as may be designated by the Issuer by any appropriate method.
(d) Not later than the fourth Business Day after the record date for each
payment date, the Trustee will deliver to the Issuer a written notice
specifying, in the currency in which each series of the Securities are
denominated, the respective aggregate amounts of principal of and interest on
the Securities to be made on such payment date, specifying the amounts so
payable in respect of the Registered and the Unregistered Securities and in
respect of the Registered Securities as to which the Holders of Securities
denominated in ECU shall have elected to be paid in another currency as provided
in paragraph (b) above. If the Board of Directors has provided for the election
referred to in paragraph (b) above and if at least one Holder has made such
election, then not later than the eighth Business Day following each record date
the Company will deliver to the Trustee an Exchange Rate Officer's Certificate
in respect of the Dollar or Foreign Currency payments to be made on such payment
date. The Dollar or Foreign Currency amount receivable by Holders of Registered
Securities denominated in ECU who have elected payment in such currency as
provided in paragraph (b) above shall be determined by the Issuer on the basis
of the applicable Official ECU Exchange Rate set forth in the applicable
Exchange Rate Officer's Certificate.
(e) If the Foreign Currency in which any of the Securities are denominated
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, or if the ECU ceases to be used both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities, then with respect to
each date for the payment of principal of, premium, if any, and interest on the
applicable Foreign Currency or ECU denominated Securities occurring after the
last date on which the Foreign Currency or ECU was so used (the "Conversion
Date"), the Dollar shall be the currency of payment for use on each such payment
date. The Dollar amount to be paid by the Issuer to the Trustee and by the
Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be the Dollar Equivalent of the Foreign Currency or, in
the case of ECU, the Dollar Equivalent of the ECU as determined by the Trustee
as of the record date (the "Valuation Date") in the manner provided in
paragraphs (g) or (h) below.
(f) If the Holder of a Registered Security denominated in ECU elects
payment in a specified Foreign Currency as provided for by paragraph (b) and
such Foreign Currency ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, such Holder shall
receive payment in ECU, and if ECU ceases to be used both within the European
Monetary System and for the settlement of transactions by public institutions of
or within the European Communities, such Holder shall receive payment in
Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Trustee as of each Valuation Date and shall be obtained by converting the
specified Foreign Currency into Dollars at the Market Exchange Rate on the
Valuation Date.
(h) The "Dollar Equivalent of the ECU" shall be determined by the Trustee
as of each Valuation Date and shall be the sum obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate on the Valuation Date for such
Component Currency.
(i) For purposes of this Section 2.12 the following terms shall have the
following meanings:
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A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the ECU.
A "Specified Amount" of a Component Currency shall mean the number of units
or fractions thereof which such Component Currency represented in the ECU on the
Conversion Date. If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such single currency
equal to the sum of the respective Specified Amounts of such consolidated
Component Currencies expressed in such single currency, and such amount shall
thereafter be a Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by specified amounts of such two or more currencies,
the sum of which, at the Market Exchange Rate of such two or more currencies on
the date of such replacement, shall be equal to the Specified Amount of such
former Component Currency divided by the number of currencies into which such
Component Currency was divided, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar buying
rate for that currency for cable transfers quoted in New York City on the
Valuation Date as certified for customs purposes by the Federal Reserve Bank of
New York. If such rates are not available for any reason with respect to one or
more currencies for which an Exchange Rate is required, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City or in the country of
issue of the currency in question, or such other quotations as the Trustee shall
deem appropriate. Unless otherwise specified by the Trustee, if there is more
than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.
All decisions and determinations of the Trustee regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the ECU and the
Market Exchange Rate shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and irrevocably binding upon
the Issuer and all Holders of the Securities. In the event that the Foreign
Currency ceases to be used both by the government of the country which issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, the Issuer, after learning
thereof, will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 11.4 to
the Holders) specifying the Conversion Date. In the event the ECU ceases to be
used both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities, the
Issuer, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 11.4 to the Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the event
of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Issuer, after learning thereof, will
similarly give notice to the Trustee. The Trustee shall be fully justified and
protected in relying on and acting upon the information so received by it from
the Issuer and shall not otherwise have any duty or obligation to determine such
information independently.
SECTION 2.13 COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS.
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If any Unregistered Securities are to be issued in any series of
Securities, the Issuer, Trustee, or any Paying Agent will use reasonable efforts
to provide for arrangements and procedures designed pursuant to then applicable
laws and regulations, if any, to ensure that Unregistered Securities are sold or
resold, exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Issuer.
SECTION 2.14. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Issuer shall execute and the
Trustee shall, in accordance with Section 2.4 and the Issuer order delivered to
the Trustee thereunder, authenticate and deliver, such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.14 or of Section
2.8, unless the terms of a Global Security expressly permit such Global Security
to be exchanged in whole or in part for individual Securities, a Global Security
may be transferred, in whole but not in part and in the manner provided in
Section 2.8, only to another nominee of the Depositary for such Global Security,
or to a successor Depositary for such Global Security selected or approved by
the Issuer or to a nominee of such successor Depositary.
(c)(i) If at any time the Depositary for a Global Security notifies the
Issuer that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
shall no longer by eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Issuer
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3(10) shall no longer
be effective with respect to such Global Security and the Issuer will execute,
and the Trustee, upon receipt of an Issuer order for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security.
(ii) The Issuer may at any time and in its sole discretion determine
that the Securities of any series issued or issuable in the form of one or
more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of a Issuer order for the authentication and delivery
of individual Securities of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Securities
of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global Security or
Securities representing such series in exchange for such Global Security or
Securities.
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(iii) If specified by the Issuer pursuant to Section 2.3 with respect
to Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to
the Issuer and such Depositary. Thereupon the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security of like tenor and terms and in
a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
(iv) if there shall have occurred and be continuing an Event of
Default or an event which with the giving of notice or lapse of time or
both, would constitute an Event of Default with respect to Securities
represented by such Global Security or Securities, thereupon the Issuer
shall execute, and the Trustee shall authenticate and deliver, without
service charge, to each Person specified by the Depositary a new Security
or Securities of the same series of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security.
(v) In any exchange provided for in any of the preceding four
paragraphs, the Issuer will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
persons in whose names such Securities are so registered.
SECTION 2.15 APPOINTMENT OF AGENTS WITH RESPECT TO CERTAIN CALCULATIONS.
The Issuer may appoint an Agent or Agents with respect to one or more Series of
Securities which Agent or Agents shall be authorized to determine the rate or
rates of interest applicable to the Securities of any Series from time to time
in effect, the amount of principal or premium, if any, payable on the Securities
of any Series and the rates of exchange applicable to the Securities of any
Series denominated in a currency other than United States dollars from time to
time in effect, all in accordance with the terms of the Securities of such
Series. Wherever reference is made in this Indenture to any such calculation by
the Trustee, it shall be deemed to refer to the calculation by such agent or
agents. Such agent, upon calculating the amounts so to be calculated pursuant to
the terms of the Securities of any Series shall communicate promptly in writing
the amounts so calculated to the Issuer and the Trustee. Absent manifest error,
all amounts so calculated shall be binding on the Issuer, the Trustee and the
Holders of the Securities of such Series.
Any such agent may resign at any time by giving written notice thereof to
the Issuer and to the Trustee. The Issuer may at any time terminate the agency
of any such agent by giving written notice thereof to such agent and to the
Trustee. Upon receiving such a notice of resignation or upon such a termination,
the Issuer may appoint a successor agent and shall give notice of such
appointment to all Holders of Securities in the manner provided in Section 11.4.
ARTICLE THREE
COVENANTS OF THE ISSUER
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SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, premium, if any, and
interest on, each of the Securities of such series in accordance with the terms
of the Securities of such series, any Coupons appertaining thereto and this
Indenture.
The interest on Unregistered Securities 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 interest on any temporary
Unregistered Security shall be paid, as to any installment of interest evidenced
by a Coupon attached thereto, if any, only upon presentation and surrender of
such Coupon, and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any of the Securities
remain outstanding, the Issuer will maintain the following for each series: an
office or agency (a) where the Securities may be presented for payment, (b)
where the Securities may be presented for registration of transfer and for
exchange as in this Indenture provided and (c) where notices and demands to or
upon the Issuer in respect of the Securities or of this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. In case the Issuer shall
fail to so designate or maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Corporate
Trust Office.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.11, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
SECTION 3.4 PAYING AGENTS. Whenever the Issuer shall appoint a Paying Agent
other than the Trustee with respect to the Securities of any series, it will
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such Agent shall agree with the Trustee, subject to the provisions of this
Section,
(a) that it will hold all sums received by it as such Agent for the
payment of the principal of or interest on the Securities of such series or
Coupons (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series or Coupons) in trust for the
benefit of the Holders of the Securities of such series or of the Trustee,
and upon the occurrence of an Event of Default pay over all such sums
received by it to the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series or
Coupons when the same shall be due and payable,
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above, and
(d) that it will give the Trustee notice of any change of address of
any Holder of which it is aware.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series or Coupons, deposit with the Paying
Agent a sum sufficient to pay such principal or interest so becoming due, and
(unless such Paying Agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
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If the Issuer shall act as its own Paying Agent with respect to the
Securities of any series or Coupons, it will, on or before each due date of the
principal of or interest on the Securities of such series or Coupons, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series or Holders of such Coupons a sum sufficient to pay such principal or
interest so becoming due. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities or Coupons hereunder, or for any
other reason, pay or cause to be paid to the Trustee all sums held in trust for
any such series by the Issuer or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.5 WRITTEN STATEMENT TO TRUSTEE. The Issuer will deliver to the
Trustee on or before January 1 in each year (beginning with 1995) brief
certificates (which need not comply with Section 11.5) from the principal
executive, financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants under the
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under the Indenture).
SECTION 3.6 LIMITATION ON LIENS. (a) So long as any of the Securities
remain Outstanding and unpaid, the Issuer will not create, assume or suffer to
exist and will not cause, suffer to exist or permit any Restricted Subsidiary to
create, assume or suffer to exist, any mortgage, pledge, security interest or
other lien or encumbrance (herein referred to as a "Mortgage") of or upon any of
its or their properties or assets, real or personal, whether owned at the date
of this Indenture or thereafter acquired, or of or upon any income or profits
therefrom, without making effective provision, and the Issuer covenants that in
any such case it will make or cause to be made effective provision, whereby the
Securities then Outstanding shall be secured by such mortgage, pledge, lien or
encumbrance equally and ratably with any and all other obligations and
indebtedness thereby secured so long as such indebtedness is so secured;
provided, that the foregoing covenant shall not apply to any mortgage of the
following character (each, a "Permitted Lien"):
(i) Mortgages on property existing at the time of acquisition of such
property (provided such mortgages are limited to such property and
improvements thereon) or to secure the payment of all or any part of the
purchase price thereof or to secure any indebtedness incurred at the time
of, or within 180 days after, the acquisition of such property for the
purpose of financing all or any part of the purchase price thereof;
(ii) Mortgages on property of any Person, which Mortgages are existing
at the time (A) such person became a Restricted Subsidiary, (B) such person
is merged into or consolidated with the Issuer or any Subsidiary or (C)
another Subsidiary merges into or consolidates with such person (in a
transaction in which such person becomes a Restricted Subsidiary), which
Mortgage was not incurred in anticipation of such transaction and was
outstanding prior to such transaction;
(iii) Mortgages existing on the date of this Indenture;
(iv) Mortgages which secure debt owing to the Issuer or a Restricted
Subsidiary by a Restricted Subsidiary;
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(v) Mortgages on any property created, assumed or otherwise brought
into existence in contemplation of the sale or other disposition of such
property, whether directly or indirectly by way of share disposition or
otherwise; provided that after 120 days from the creation of such mortgage
such property shall not be owned by the Issuer or any Restricted Subsidiary
and any indebtedness secured by such mortgage shall be without recourse to
the Issuer or any Restricted Subsidiary;
(vi) Mortgages arising by reason of any judgment, decree or order of
any court, so long as any appropriate legal proceedings which may have been
duly initiated for the review of such judgment, decree or order shall not
have been finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired; or pledges or deposits
to secure payment of workmen's compensation or other insurance, good faith
deposits in connection with tenders, contracts (other than contracts for
the payment of money) or leases, deposits to secure public or statutory
obligations, deposits to secure or in lieu of surety or appeal bonds, or
deposits as security for the payment of taxes;
(vii) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute; and
(viii) extensions, renewals or replacements, in whole or in part, of
any Mortgage referred to in the foregoing clauses (i) to (vii), inclusive,
provided that the principal amount of indebtedness secured thereby shall
not exceed the principal amount of indebtedness so secured at the time of
such extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or any part of the same property that
secured the Mortgage extended, renewed or replaced (plus improvements on
such property).
(b) Notwithstanding the provisions contained in subdivision (a) of this
Section 3.6, the Issuer and its Restricted Subsidiaries, or any of them, may
create Mortgages without equally and ratably securing the Securities or create,
incur, assume or permit to exist Indebtedness of Restricted Subsidiaries
otherwise prohibited, if, after giving effect thereto and to the retirement of
any indebtedness or obligations which are concurrently being retired, the
aggregate amount of all outstanding indebtedness of the Issuer and its
Restricted Subsidiaries secured by Mortgages which could not exist without
equally and ratably securing the Securities except for the provisions of this
subdivision (b) plus the aggregate amount of Attributable Debt in respect of
Sale and Lease-Back Transactions (as defined in Section 3.7) existing at such
time which could not have been entered into by the Issuer or a Restricted
Subsidiary except for the provisions of clause (a) of Section 3.7 plus the
aggregate amount of Indebtedness of Restricted Subsidiaries otherwise prohibited
does not at such time exceed 10% of the Consolidated Net Tangible Assets of the
Issuer and its Restricted Subsidiaries.
In the event that the Issuer shall hereafter secure the Securities pursuant
to the provisions of this Section 3.6, the Trustee is hereby authorized to enter
into an indenture supplemental hereto and to take such action, if any, as it may
deem advisable to enable it to enforce effectively the rights of the holders of
the Securities so secured.
SECTION 3.7 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The Issuer will
not enter into any arrangements with any person, nor will the Issuer permit any
Restricted Subsidiary to enter into any arrangements with any person other than
the Issuer, providing for the leasing by the Issuer or any Restricted Subsidiary
of all or any substantial portion of any Principal Property (except for leases
for temporary periods not to exceed three years by the end of which it is
intended that the use of the leased property by the lessee will be
discontinued), which property has been or is to be sold or transferred by the
Issuer or such Restricted Subsidiary to such person with the intention of taking
back a lease of such Principal Property (herein referred to as a "Sale and
Lease-Back Transaction")
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unless the net proceeds of the sale or transfer of the property to be leased are
at least equal to the fair value (as determined by the Board of Directors) of
such Principal Property and either
(a) the Issuer or such Restricted Subsidiary would, at the time
entering into such arrangement, be entitled, without equally and ratably
securing the Securities, to create or assume a mortgage on such property
securing indebtedness in an amount at least equal to the Attributable Debt
in respect of such Sale and Lease-Back Transaction, pursuant to subdivision
(b) of Section 3.6, or
(b) the Issuer, within 120 days after the transfer of title to such
Principal Property, shall apply an amount equal to the net proceeds derived
from such sale or transfer to the retirement, repayment or other discharge
of Securities in accordance with the terms thereof or other indebtedness
for borrowed money of the Issuer which ranks pari passu with the Securities
and which by its terms matures at, or is extendible or renewable at the
option of the obligor to, a date more than 12 months after the date of the
creation of such indebtedness.
A Sale and Lease-Back Transaction shall not be deemed to result in the
creation of a mortgage.
SECTION 3.8 ADDITIONAL AMOUNTS. If the Securities of a Series provide for
the payment of additional amounts, the Issuer will pay to the Holder of any
Security of such Series or any Coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of or interest on, or in respect of, any Security
of any Series or payment of any related Coupon or the net proceeds received on
the sale or exchange of any Security of any Series, such mention shall be deemed
to include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a Series provide for the payment of
additional amounts, at least 10 days prior to the first interest payment dated
with respect to that Series of Securities (or if the Securities of that Series
will not bear interest prior to maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officer's Certificate, the Issuer will furnish
the Trustee and the Issuer's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officer's Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of or interest
on the Securities of that Series shall be made to Holders of Securities of that
Series or any related Coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that Series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities of
Coupons and the Issuer will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Issuer covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising our of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 3.9 LIMITATIONS ON RESTRICTED SUBSIDIARY INDEBTEDNESS.
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The Issuer will not permit any Restricted Subsidiary to incur or assume any
indebtedness except:
(1) Indebtedness outstanding on the date of this Indenture;
(2) Indebtedness that is or could be secured by a Mortgage permitted
pursuant to Section 3.6;
(3) Indebtedness issued to and held by the Issuer or another
Restricted Subsidiary;
(4) Indebtedness incurred by a Person prior to the time (A) such
Person became a Restricted Subsidiary, (B) such Person is merged into or
consolidated with the Company or any Subsidiary or (C) another Subsidiary
merges into or consolidates with such Person (in a transaction in which
such Person becomes a Restricted Subsidiary), which Indebtedness was not
incurred in anticipation of such transaction and was outstanding prior to
such transaction;
(5) indebtedness incurred in the ordinary course of business and
maturing within one year; and
(6) extensions, renewals or replacements of any of the foregoing;
Provided, however, that the Issuer may permit a Restricted Subsidiary to incur
Indebtedness otherwise prohibited by this Section 3.9 if such Indebtedness may
be incurred pursuant to subdivision (b) of Section 3.6.
SECTION 3.10. CORPORATE EXISTENCE.
Subject to Articles Nine and Thirteen hereof, the Issuer shall do or cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or other existence of
each Restricted Subsidiary in accordance with the respective organizational
documents of each Restricted Subsidiary and the rights (charter and statutory),
licenses and franchises of the Issuer and its Restricted Subsidiaries, provided
that the Issuer shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Restricted
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer and
its Restricted Subsidiaries taken as a whole and that the loss thereof is not
adverse in any material respect to the Holders.
SECTION 3.11. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 2.3 for Securities
of such series, the Issuer may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 2.3(12), 8.1(c) or 8.1(e)
for the benefit of the Holders of such series or in Section 3.6, 3.7, 3.9 or
3.10 if before the time for such compliance the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Issuer and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
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ISSUER AND THE TRUSTEE
SECTION 4.1 SECURITYHOLDERS LISTS. If and so long as the Trustee shall not
be the Security registrar for the Registered Securities of any series, the
Issuer will furnish or cause to be furnished to the Trustee a list in such form
as the Trustee may reasonably require of the names and addresses of the holders
of the Registered Securities of such series pursuant to Section 312 of the Trust
Indenture Act (a) semi-annually not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove specified,
as of such record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 4.2 REPORTS BY THE ISSUER. The Issuer covenants to file with the
Trustee, within 15 days after the issuer is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports which the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.
SECTION 4.3 REPORTS BY THE TRUSTEE. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act shall be transmitted on or before July
15 in each year following the date hereof, so long as any Securities are
outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 nor less than 45 days prior thereto.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF
DEFAULT. "Event of Default" with respect to Securities of any series wherever
used herein means each one of the following events which shall have occurred and
be continuing (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) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) default in the performance of any covenant or warranty of the
Issuer in respect of the Securities of such series (other than a covenant
or warranty in respect of the Securities of such series a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Issuer
by the Trustee or to the Issuer and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series
affected thereby, a written notice specifying such default or breach
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and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or for any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(g)(i) default under any Indebtedness of the Issuer or any Subsidiary
or under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of
the Issuer or any Subsidiary resulting in the acceleration of such
Indebtedness, or (ii) any default in payment of such Indebtedness (after
expiration of any applicable grace periods), if the aggregate amount of all
such Indebtedness that has been so accelerated and with respect to which
there has been a default in payment shall exceed the greater of $20,000,000
or 3% of Consolidated Net Tangible Assets and there shall have been a
failure to obtain rescission or annulment of all such accelerations or to
discharge all such defaulted Indebtedness within 10 days after written
notice of the type specified in the foregoing clause (d); or
(h) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Securities of such series shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities of such series
then Outstanding hereunder (each such series treated as a separate class), by
notice in writing to the Issuer (and to the Trustee if given by the
Securityholders), may declare the entire principal of all Securities of such
series and the interest accrued thereon to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal of the Securities of any series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such series and the
principal of any and all Securities of such series which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of Securities, as
the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-
payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein---then and in every such case the Holders of a majority in
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aggregate principal amount of all the Securities of such series, each series
treated as a separate class, then outstanding, by written notice to the Issuer
and to the Trustee, may waive all defaults with respect to such series and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT.
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise---then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series and the Holders
of any Coupons appertaining thereto the whole amount that then shall have become
due and payable on all Securities of such series or such Coupons for principal
of or interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate as the rate of interest specified in the Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the Registered Holders,
whether or not the principal of and interest on the Securities of such series
are overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for reasonable compensation to the Trustee and each
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predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders and the
Holders of any Coupons appertaining thereto allowed in any judicial
proceedings relative to the Issuer or other obligor upon the Securities of
any series, or to the creditors or property of the Issuer or such other
obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Holders to make
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities may be enforced by the Trustee without the possession of
any of the Securities or the production thereof at any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities and Holders of any Coupons in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities and Coupons appertaining thereto in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities and Coupons appertaining thereto parties to any such proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS. Any moneys collected by the Trustee
pursuant to this Article in respect of the Securities of any series shall be
applied in the following order at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities and any Coupons appertaining thereto
in respect of which moneys have been collected and stamping (or otherwise
noting) 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, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which moneys have been collected, including reasonable
compensation to the Trustee and
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each predecessor Trustee and their respective agents and attorneys and of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or
bad faith, and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that payment
of such interest is permissible by law and that such interest has been
collected by the Trustee) upon overdue installments of interest at the same
rate as the rate of interest specified in the Securities of such series;
and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to the
payment of such principal and interest without preference or priority of
principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 5.4 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of any
Security of any series or Holder of any Coupon shall have any right by virtue or
by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity, as it may require against the costs, expenses and
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liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 5.9; it
being understood and intended, and being expressly covenanted by the taker and
Holder of every Security or Holder of any Coupon appertaining thereto and the
Trustee, that no one or more Holders of Securities of any series or one or more
Holders of any Coupons appertaining thereto shall have any right in any manner
whatever, by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other such Holder of Securities or any
other Holders of such Coupons, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and all the
Holders of any Coupons appertaining thereto. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN
SUITS. Notwithstanding any other provision in this Indenture and any provision
of any Security or Coupon, the right of any Holder of any Security and the right
of the Holder of any Coupon appertaining thereto to receive payment of the
principal of and interest on such Security on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT. Except as provided in Section 5.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Securityholders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.6, every power and remedy given by this Indenture or by law to the
Trustee, to the Securityholders or to the Holder of any Coupon appertaining
thereto may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee, the Securityholders or Holders of any Coupon.
SECTION 5.9 CONTROL BY SECURITYHOLDERS. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series treated as a separate class) or of the Holders of any Coupons
appertaining thereto at the time Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture and provided further that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series or of
the Holders of any Coupons appertaining thereto so affected not joining in the
giving of said direction, it being understood that
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(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in Section 5.1 which
relates to Securities of such series then Outstanding, except a default in the
payment of principal or of interest on the Securities of such series or in
respect of a covenant or provision hereof which cannot be modified or amended
with the consent of each Holder affected as provided in Section 8.2. In the case
of any such waiver, the Issuer, the Trustee and the Holders of the Securities of
each series affected shall be restored to their former positions and rights
hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES. The Trustee shall transmit to the Securityholders of any series,
as the names and addresses of such Holders appear on the registry books, notice
by mail of all defaults which have occurred with respect to such series, such
notice to be transmitted within 90 days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice (the term
"default" or "defaults" for the purposes of this Section being hereby defined to
mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the case of default
in the payment of the principal of or interest on any of the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors or trustees or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such, series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any Security and each
Holder of any Coupon, by his acceptance thereof, shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (d) of Section 5.1 (if the suit
relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clause (d) (if the suit under
clause (d) relates to all the Securities then Outstanding), (e), (f) or (g) of
Section 5.1, 10% in aggregate principal amount of all Securities Outstanding, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of or interest on any Security on or after the due date
expressed in such Security.
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ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT;
PRIOR TO DEFAULT. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any Series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 5.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
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SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and subject to
the Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing to
do so by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES
OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and in the
Securities, except the Trustee's certificate of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
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validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC. The
Trustee, any Paying Agent, Security Registrar, or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and, if operative, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to,' reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or the Holders of particular Coupons, and the
Securities are hereby subordinated to such senior claim. When the Trustee incurs
expenses, after the occurrence of an Event of Default specified in Section
5.1(e) or (f), the expenses are intended to constitute expenses of
administration under applicable bankruptcy laws.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC. Subject
to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it or under
the provisions of this Indenture upon the faith thereof.
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate
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such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee for
each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $50,000,000, and which is eligible in accordance with the provisions
of Section 310(a) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of a federal, state or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE. (a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses
as then shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310 (b) of the Trust Indenture Act with respect to any series of Securities
after written request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities of such series for
at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310 (a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Issuer or by any
Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any
series of the Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a
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bona fide Holder of a Security or Securities of such series for at least six
months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor
trustee appointed as provided in Section 6.10 shall execute and deliver to the
Issuer and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 10.4, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall mail notice thereof by first-class mail to the
Holders of Securities of any series for which such successor trustee is acting
as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
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SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 6.9, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
Trustee hereunder or in the name of the successor Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee, the
Issuer, if made in the manner provided in this Article.
(b) The ownership of Registered Securities shall be proved by the Security
register.
(c) The amount of Unregistered Securities held by any Person executing any
instrument or writing as a Securityholder, the numbers of such Unregistered
Securities, and the date of his holding the same may be proved by the production
of such Securities or by a certificate executed by any trust company, bank,
broker or member of a national securities exchange (wherever situated), as
depositary, if such certificate is in form satisfactory to the Trustee, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Unregistered Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person
executing such instrument or writing as a Securityholder, if such certificate or
affidavit is in form satisfactory to the Trustee. The Trustee and the Issuer may
assume that such ownership of any Unregistered Security continues until (i)
another certificate or affidavit bearing a later date issued in respect of the
same Unregistered Security is produced, or (ii) such Unregistered Security is
produced by some other person, or (iii) such Unregistered Security is
surrendered in exchange for a Registered Security, or (iv) such Unregistered
Security has been canceled in accordance with Section 2.10.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the
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Trustee or in such manner as shall be satisfactory to the Trustee. The holding
of Securities shall be proved by the Security register or by a certificate of
the registrar thereof. The Issuer may set a record date for purposes of
determining the identity of holders of Securities of any series entitled to vote
or consent to any action referred to in Section 7.1, which record date may be
set at any time or from time to time by notice to the Trustee, for any date or
dates ( in the case of any adjournment or reconsideration) not more than 60 days
nor less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only holders of
Securities of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee and
any Agent of the Issuer or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and
interest on such Security and for all other purposes; and neither the Issuer nor
the Trustee nor any Agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, or are to be selected for any redemption
or optional repayment, Securities which are owned by the Issuer or any other
obligor on the Securities with respect to which such determination is being made
or by any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
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percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS. The
Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as their respective Boards of
Directors and the Trustee shall consider to be for the protection of the
Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors of the Issuer may deem necessary or
desirable and which shall not in any material way adversely affect the
interests of the Holders of the Securities or the Holders of any Coupons;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than the one trustee, pursuant to the
requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental
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indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (treated as
one class), the Issuer, when authorized by a resolution of its Boards of
Directors, and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series; provided, that
no such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or impair or affect the right of any Securityholder to
institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment at the option of the Securityholder without the consent
of the Holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of all Outstanding Securities of the series affected.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series and Holders of Coupons affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate from
the Issuer and an Opinion of Counsel
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as conclusive evidence that any supplemental indenture executed pursuant to this
Article Eight complies with the applicable provisions of this Indenture.
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear, upon
the direction of the Issuer, a notation in form satisfactory to the Trustee for
such series as to any matter provided for by such supplemental indenture or as
to any action taken at any such meeting. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Boards of Directors of the Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The Issuer
covenants that it will not merge or consolidate with any other Person or sell or
convey all or substantially all of its assets to any Person, unless (i) either
the Issuer shall be the continuing corporation, or the successor Person or the
Person which acquires by sale or conveyance substantially all the assets of the
Issuer (if other than the Issuer) shall be a Person organized under the laws of
the United States of America or any State thereof and shall expressly assume the
due and punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such Person, and (ii) the Issuer or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 9.2 SUCCESSOR SUBSTITUTED. In case of any such consolidation,
merger, sale or conveyance, and following such an assumption by the successor,
such successor ^ shall succeed to and be substituted for the Issuer, with the
same effect as if it had been named herein. Such successor may cause to be
signed, and may issue either in its own name or in the name of the Issuer prior
to such succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor instead of the Issuer and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities of the Issuer which
previously shall have been signed and delivered by the officers of the Issuer to
the Trustee for authentication, and any Securities which such successor
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Issuer or any successor which shall theretofore have become such
in the manner described in this Article shall be discharged from all obligations
and covenants under this Indenture and the Securities and may be liquidated and
dissolved.
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SECTION 9.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE TEN
DEFEASANCE AND COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Issuer may elect, at its option at any time, to have Section 10.2 or Section
10.3 applied to any Securities or any series of Securities, as the case may be,
designated pursuant to Section 2.3 as being defeasible pursuant to such Section
10.2 or 10.3, in accordance with any applicable requirements provided pursuant
to Section 2.3 and upon compliance with the conditions set forth below in this
Article. Any such election shall be established by or made pursuant to a
resolution of the Board of Directors.
SECTION 10.2. DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of its
option (if any) to have this Section applied to any Securities or any series of
Securities, as the case may be, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 10.4 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging the same), subject to the following, which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of such Securities to receive, solely from the trust fund described
in Section 10.4 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when
payments are due, (b) the Issuer's obligations with respect to such Securities
under Sections 2.8, 2.9, 2.11, 3.2 and 3.4, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder; and (d) this Article; and (e)
any payment obligations in respect of Securities of such series and any related
coupons which are deemed not to be Outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law. Subject to compliance with this Article, the
Issuer may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 10.3 applied to such Securities.
SECTION 10.3. COVENANT DEFEASANCE. Upon the Issuer's exercise of its option
(if any) to have this Section applied to any Securities or any series of
Securities, as the case may be, (a) the Issuer shall be released from its
obligations under Section 3.6, 3.7, 3.9 and 3.10, and any covenants provided
pursuant to Section 2.3(12), 8.1(c) or 8.1(e), for the benefit of the Holders of
such Securities and (b) the occurrence of any event specified in Section 5.1(d)
(with respect to any of Sections 3.6, 3.7, 3.9 and 3.10 inclusive, and any such
covenants provided pursuant to Section 2.3(12), 8.1(c) or 8.1(e) and 5.1(h)
shall be deemed not to be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 10.4 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set froth in any such
specified Section (to the extent so specified in the case of Section 5.1(d)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
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SECTION 10.4. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to the application of Section 10.2 or Section
10.3 to any Securities or any series of Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank for
the account of the holder of such depositary receipt, or with respect to
any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(b) In the event of an election to have Section 10.2 apply to any
Securities or any series of Securities, as the case may be, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there
has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(c) In the event of an election to have Section 10.3 apply to any
Securities or any series of Securities, as the case may be, the Issuer
shall have delivered to the Trustee an Opinion of Counsel or a ruling
published by the Internal Revenue Service to the effect that the Holders of
such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be effected
with respect to such Securities and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
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(d) The Issuer shall have delivered to the Trustee an Opinion of
Counsel or letter or other document from an applicable securities exchange
to the effect that neither such Securities nor any other Securities of the
same series, if then listed on any securities exchange, will be deleted as
a result of such deposit.
(e) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 5.1(e) and
(f) at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(g) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Issuer is a party or by which it is bound.
(h) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(i) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 10.5. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS. Subject to Section 10.7, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 10.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 10.4 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 10.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Issuer from time to time upon Issuer Request any money or
U.S. Government Obligations held by it as provided in Section 10.4 with respect
to any Securities which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof, which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 10.6. REINSTATEMENT. If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article with respect to any
Securities by reason of any order or
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judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Issuer has been discharged or
released pursuant to Section 10.2 or 10.3 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 10.5 with respect to such Securities
in accordance with this Article; PROVIDED, HOWEVER, that if the Issuer makes any
payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Issuer shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
SECTION 10.7 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED
FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal of or interest on any Security of any
series or Coupons and not applied but remaining unclaimed for two years after
the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee for such series or such
Paying Agent, and the Holder of the Security of such series or Holders of
Coupons appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER
EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, in any Security or Coupon
appertaining thereto, or because of any Indebtedness evidenced thereby, shall be
had against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND
SECURITYHOLDERS. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any Person, firm or corporation,
other than the parties hereto, any Paying Agent and their successors hereunder
and the Holders of the Securities and Coupons, if any, any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND SECURITYHOLDERS.
Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee, by the Holders of Securities, or
by the Holders of Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
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provided herein) addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to Ralcorp Holdings, Inc., P. O. Box 618, St. Louis,
Missouri 63188-0618. Any notice, direction, request or demand by the Issuer or
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made at the Corporate
Trust Office.
Where this Indenture provides for notice to Holders of any event, (I) if
any of the Securities affected by such event are Registered Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to such Registered
Holders as their names and addresses appear in the Security register within the
time prescribed and (2) if any of the Securities affected by such event are
Unregistered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if published once in a newspaper of general
circulation in New York, New York and London, England within the time
prescribed. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (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 such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or
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representations by an officer or officers of the Issuer; unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date
of maturity of interest on or principal of the Securities of any series or
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon shall not be a Business Day, then payment of
interest, premium, if any, or principal need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT OF 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
(an "incorporated provision"), such incorporated provision shall control.
SECTION 11.8 NEW YORK LAW TO GOVERN. This Indenture and each Security shall
be deemed to be a contract under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such State.
SECTION 11.9 COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE. The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 2.3 for Securities of
such series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first-class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
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notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities,
and that, unless otherwise specified in such notice, Unregistered Coupon
Securities, if any, surrendered for payment must be accompanied by all Coupons
maturing subsequent to the redemption date, failing which the amount of any such
missing Coupon or Coupons will be deducted from the sum due for payment, that
such redemption is pursuant to the mandatory or optional sinking fund, or both,
if such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the Outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 60 days prior to the
date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed in whole or in part. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 6.5 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said
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notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that any
semiannual payment of interest becoming due on the date fixed for redemption
shall be payable to the Holders of such Securities registered as such on the
relevant record date subject to the terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest borne
by the Security.
Upon presentation of any Security redeemed in part only and the Coupons
appertaining thereto, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities and the Coupons
appertaining thereto, of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION
FOR REDEMPTION. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Issuer and delivered to
the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Issuer, or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.7, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee a written statement
(which need not contain the statements required by Section 11.5) signed by an
authorized officer of the Issuer (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series, (b) stating that none of the
Securities of such series has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing,
(d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date and (e) specifying
such sinking fund payment date. Any Securities of such series to be
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credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such written statement (or reasonably promptly
thereafter if acceptable to the Trustee). Such written statement shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such sixtieth day, to deliver such
written statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Issuer shall so request) with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 12.2, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be possible, and
shall (if requested in writing by the Issuer) inform the Issuer of the serial
numbers of the Securities of such series (or portions thereof) so selected.
Securities of any series which are (a) owned by the Issuer or an entity known by
the Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Security
register, and not known to the Trustee to have been pledged or hypothecated by
the Issuer or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially owned
by, and not pledged or hypothecated by, the Issuer or an entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer shall be excluded from Securities of such series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall
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have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 REPAYMENT AT THE OPTION OF THE HOLDERS. Securities of any
series which are repayable at the option of the Holders thereof before their
stated 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 stated maturity,
for purposes of Section 10.1, shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the Issuer, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be canceled.
ARTICLE THIRTEEN
GUARANTEE
SECTION 13.1 ISSUER'S OPTION TO HAVE SECURITIES GUARANTEED. The Issuer may
elect, at its option at any time, to have Article Thirteen applied to any
Securities or any series of Securities, as the case may be, designated pursuant
to Section 2.3 as being guaranteed pursuant to Article Thirteen, in accordance
with any applicable requirements provided pursuant to Section 2.3 and upon
compliance with the conditions set forth in Article Thirteen. Any such election
shall be established by or made pursuant to a resolution of the Board of
Directors.
SECTION 13.2 SUBSIDIARY GUARANTORS. Upon the Issuer's option (if any) to
have this Article applied to any Securities or series of Securities, as the case
may be, the Issuer shall cause its Subsidiaries executing this Indenture to
guarantee such Securities and (a) cause all of its Subsidiaries, direct or
indirect, which after the date of this Indenture constitute in the aggregate at
least 99% of the Company's Consolidated Total Assets, Consolidated Net Earnings,
Consolidated Revenues, and Consolidated Equity to execute a Guarantee of the
Securities in the form set forth in this Article Thirteen hereof and Exhibit A
hereto, PROVIDED that no Subsidiary organized outside of the United States of
America shall be required to be a Guarantor, and (b) deliver to the Trustee an
Opinion of Counsel, in form reasonably satisfactory to the Trustee, that any
Guarantee executed after the date of this Indenture is a valid, binding and
enforceable obligation of the applicable Subsidiary, subject to customary
exceptions for bankruptcy, fraudulent conveyance and equitable principles and
the implied covenant of good faith and fair dealing.
SECTION 13.3 SUBSIDIARY GUARANTEE. Upon the Issuer's exercise of its option
(if any) to have this Article applied to any Securities or any series of
Securities, as the case may be, each of the Guarantors hereby jointly, severally
and unconditionally guarantee to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the
Securities or the obligations of the Issuer hereunder or thereunder, that: (a)
the principal of, and premium, if any, and interest on the Securities will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of, premium, if any, and
interest on the Securities, if any, if lawful, and all other obligations of the
Issuer to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Securities
or any of such other obligations, the same will be promptly paid in full when
due or performed in accordance
-51-
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise; PROVIDED, HOWEVER, that it is the intention of the
parties hereto that in no event shall any Guarantor's obligations under its
Guarantee constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction. Therefore, in the event
that any Guarantee would, but for this sentence, constitute or result in such a
violation, then the liability of a Guarantor under such Guarantee shall be
reduced to the maximum amount permissible under the applicable fraudulent
conveyance or similar law. Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors will be
jointly and severally obligated to pay the same immediately. The Guarantors
hereby agree that their obligations hereunder shall be absolute and
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuer any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor other than the defense
that payment has been made or that the other relevant obligations have been paid
or performed. Each Guarantor hereby waives diligence, presentment, demand of
payment, claim of fraud, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenant that
this Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Issuer or
Guarantors, or any custodian, trustee, liquidator or other similar official
acting in relation to either the Issuer or Guarantors, any amount paid by either
to the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor agrees
that it shall not be entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees that, as
between the Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article Five such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of this Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee. The foregoing Guarantee shall rank PARI PASSU
with the guaranties for the benefit of the lenders under the Credit Agreement.
Each Guarantor shall be subrogated to all rights of each Holder of any
Securities against the Issuer in respect of any amounts paid to the Holders by
such Guarantor pursuant to the provisions of this Guarantee; provided that the
Guarantors shall not be entitled to enforce, or to receive, any payments arising
out of or based upon, such right of subrogation until the principal of, premium,
if any, and interest on all the Securities shall have been paid in full and
nothing remains owed to the Trustee pursuant to this Indenture.
The Guarantee set forth in this Section 13.3 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by or on behalf of the
Trustee.
Unless determined otherwise by the Issuer pursuant to Section 2.3, the
Guarantee set forth in this Section 13.3 shall be effective with respect to any
Guarantor only so long as any Indebtedness of the Issuer is guaranteed by such
Guarantor.
SECTION 13.4 EXECUTION AND DELIVERY OF GUARANTEE. Upon the Issuer's
exercise of its option (if any) to have this Article applied to any Securities
or any series of Securities, as the case
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may be, to evidence its Guarantee set forth in Section 13.3 hereof, each
Guarantor hereby agrees that a notation of such Guarantee substantially in the
form of Exhibit A shall be endorsed by an officer of such Guarantor on each
Security authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Chairmen, Treasurer or Vice Presidents and attested to by its Secretary of
Assistant Secretary.
Each Guarantor hereby agrees that its Guarantee set forth in Section 13.3
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Guarantee.
If a Person whose signature is on this Indenture or on the Guarantee no
longer holds the office under which the Person signed the Guarantee at the time
the Trustee authenticates the Security on which a Guarantee is endorsed, the
Guarantee shall be valid, binding and enforceable nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of Guarantors.
SECTION 13.5 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Articles Three and Nine hereof, nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of a Guarantor with or into the Issuer or another
Guarantor or shall prevent any sale or conveyance of all or substantially all of
the assets of a Guarantor, to the Issuer or another Guarantor. Upon any such
consolidation, merger, sale or conveyance, the Guarantee given by such Guarantor
shall no longer have any force or effect.
(b) Except as set forth in Articles Three and Nine hereof, nothing
contained in this Indenture or in any of the Securities shall prevent the sale
or other disposition by the Issuer or any Subsidiary of any Guarantor (by sale
of capital stock, merger, consolidation or otherwise) or of all or substantially
all of the assets of any Guarantor to any Person other than the Issuer or any
Subsidiary, PROVIDED the Issuer's Subsidiaries constituting in the aggregate not
less than 99% of the Issuer's Consolidated Total Assets, Consolidated Net
Earnings, Consolidated Revenues, and Consolidated Equity determined after giving
effect to such sale or disposition execute and deliver to the Trustee a
Guarantee and, PROVIDED, FURTHER, that the foregoing proviso shall not apply to
the sale or disposition of a Guarantor in a foreclosure proceeding to the extent
that such proviso would be inconsistent with the Uniform Commercial Code. Upon
delivery by the Issuer to the Trustee of an Officers' Certificate and an Opinion
of Counsel to the effect that such sale or other disposition was made in
accordance with the provisions of this Indenture, such Guarantor (in the event
of a sale or other disposition of all of the capital stock of such Guarantor) or
the successor corporation or the corporation acquiring the property and such
Guarantor (in the event of a consolidation or merger or sale or other
disposition of all or substantially all of the assets of a Guarantor) shall
automatically be released and relieved of its obligations under this Article
Thirteen, and the Trustee shall execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations under its
Guarantee. Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Securities and for the other obligations of any Guarantor under the Indenture as
provided in this Article Thirteen.
SECTION 13.6 "TRUSTEE" TO INCLUDE PAYING AGENT. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Issuer and
be then acting hereunder, the term "Trustee" as used in this Article Thirteen
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 and for
all intends and purposes as if such Paying Agent were named in this Article
Thirteen in place of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ATTEST: RALCORP HOLDINGS, INC.
By: /s/ R. W. Lockwood By: /s/ J. R. Micheletto
----------------------------- ------------------------
Secretary J. R. Micheletto
Chief Financial Officer
[CORPORATE SEAL]
ATTEST: THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By /s/ Janice Ott Rotunno By: /s/ R. D. Manella
------------------------------ ------------------------------
Assistant Vice President Name: R. D. Manella
Vice President
[CORPORATE SEAL]
ATTEST: BEECH-NUT NUTRITION CORPORATION
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
------------------------------ ------------------------------
Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
ATTEST: BREMNER, INC.
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
------------------------------ ------------------------------
Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
ATTEST: KEYSTONE RESORTS MANAGEMENT, INC.
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
------------------------------ ------------------------------
Assistant Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
ATTEST: RALSTON FOODS, INC.
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
------------------------------ ------------------------------
Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
-54-
STATE OF MISSOURI )
) ss.
COUNTY OF CITY OF ST. LOUIS)
On this 23rd day of September, 1994, before me personally came J. R.
Micheletto, to me personally known, who, being by me duly sworn, did depose and
say that he resides at Edwardsville, Missouri, and that he is Chief Financial
Officer of Ralcorp Holdings, Inc., Beech-Nut Nutrition Corporation, Bremner,
Inc., Keystone Resorts Management, Inc. and Ralston Foods, Inc., the
corporations described in and which executed the above instrument; that he knows
the corporate seals of said corporations; that the seals affixed to said
instrument are such corporate seals; that they were so affixed by authority of
the Board of Directors of said corporations; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
/s/ Julie E. Bolte Neiger
-----------------------------------
Notary Public
Notary Public, State of Missouri
City of St. Louis
My Commission Expires Feb. 21, 1997
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
On this 26th day of September, 1994, before me personally came R. D.
Manella, to me personally known, who, being by me duly sworn, did depose and say
that he resides at Buffalo Grove, Illinois; that he is a Vice President of The
First National Bank of Chicago, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Ann Longino
-----------------------------------
Notary Public
Notary Public, State of Illinois
My Commission Exp: 05/17/98
-55-
EXHIBIT A
[FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE]
GUARANTEE
Each of the Persons listed below (hereinafter referred to as the
"Guarantors," which term includes any successor or additional Guarantor under
the Indenture (the "Indenture") referred to in the Security upon which this
notation is endorsed) (i) has jointly and severally, unconditionally guaranteed
that (a) the principal of, and premium, if any, and interest on the Securities
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if
any, and interest on the Securities, if any, if lawful, and all other
obligations of the Issuer to the Holders or the Trustee will be promptly paid in
full or performed, all in accordance with the terms hereof and as set forth in
the Indenture; and (b) in case of any extension of time of payment or renewal of
any Securities or any of such other obligations, the same will be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration, or otherwise; PROVIDED,
HOWEVER, that in no event shall any Guarantor's obligations under its Guarantee
constitute or result in a violation of any applicable fraudulent conveyance or
similar law of any relevant jurisdiction. Therefore, in the event that any
Guarantee would, but for this sentence, constitute or result in such a
violation, then the liability of a Guarantor under such Guarantee shall be
reduced to the maximum amount permissible under the applicable fraudulent
conveyance or similar law. Capitalized terms used herein have the meanings
assigned to them in the Indenture unless otherwise indicated.
No stockholder, officer, director, employer or incorporator, past, present
or future, of the Guarantors, as such, shall have any personal liability under
this Guarantee by reason of his or its status as such stockholder, officer,
director, employer or incorporator.
This Guarantee shall be binding upon each Guarantor and its successors and
assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose with
respect to a Security until the certificate of authentication on the Security
upon which this Guarantee is noted shall have been executed by or on behalf of
the Trustee under the Indenture by the manual signature of one of its authorized
signatories.
This Guarantee shall be effective with respect to any Guarantor only so
long as any Indebtedness of the Issuer is guaranteed by such Guarantor.
Beech-Nut Nutrition Corporation
Bremner, Inc.
Keystone Resorts Management, Inc.
Ralston Foods, Inc.
By:_______________________________
J. R. Micheletto
Authorized Signatory
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================================================================================
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 31, 1997
AMONG
RALCORP HOLDINGS, INC.
GENERAL MILLS, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
TO
INDENTURE
DATED AS OF SEPTEMBER 23, 1994
AMONG
RALCORP HOLDINGS, INC.
Issuer
BEECH-NUT NUTRITION CORPORATION
BREMMER, INC.
KEYSTONE RESORTS MANAGEMENT, INC.
RALSTON FOODS, INC.
Guarantors
AND
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
================================================================================
FIRST SUPPLEMENTAL INDENTURE, DATED AS OF January 31, 1997, by and
among Ralcorp Holdings, Inc., a Missouri corporation (the "Company"), General
Mills, Inc., a Delaware corporation ("General Mills"), and The First National
Bank of Chicago, a national banking association, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company and Beech-Nut Nutrition Corporation, Bremner,
Inc., Keystone Resorts Management, Inc., Ralston Foods Inc. (the "Guarantors"),
and the Trustee, entered into an Indenture, dated as of September 23, 1994 (the
"Indenture"), pursuant to the provisions of which the Company has heretofore
issued $150,000,000 in aggregate principal amount of the Securities (such term
and all other defined terms used herein and not otherwise defined herein shall
have the meaning set forth in the Indenture); and
WHEREAS, pursuant to the terms of the Indenture, on March 12, 1996, the
Guarantors were released from their obligation to guarantee the due and punctual
payment of principal of and interest on the Securities and all other obligations
of the Company under the Indenture; and
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
August 13, 1996, among the Company, General Mills and General Mills Missouri,
Inc., a General Mills subsidiary created for the purpose of completing the
Merger (as defined below) ("Merger Sub"), General Mills agreed to acquire
certain businesses of the Company through a merger (the "Merger") of the Company
and Merger Sub to be effective at the close of business on January 31, 1997 (the
"Effective Date") subject to approval by the shareholders of the Company; and
WHEREAS, General Mills, by due corporate action, has determined to
assume by this First Supplemental Indenture the due and punctual payment of the
principal of and interest on all of the Securities and the performance of every
covenant of the Indenture on the part of the Company to be performed or
observed; and
WHEREAS, Section 9.1 of the Indenture provides, among other things,
that the Company will not merge or consolidate with any other Person unless (i)
either the Company shall be the continuing corporation, or the successor Person
shall be a Person organized under the laws of the United States of America or
any State thereof and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of the Indenture, by supplemental indenture, and (ii) there shall be
no default immediately after the merger; and
WHEREAS, Section 9.2 of the Indenture provides that in case of any such
merger in accordance with Section 9.1, and following such assumption by the
successor, such successor shall succeed to and be substituted for the Company,
with the same effect as if it had been named in Indenture, and the Company shall
be discharged from all obligations and covenants under the Indenture; and
WHEREAS, Section 8.1 of the Indenture provides, among other things,
that without the consent of the Holders of any of the Securities, the Company,
when authorized by a resolution of its Board of Directors and the Trustee may
from time to time and at any time enter into an indenture or supplemental
indenture to, among other things, evidence the succession of another corporation
to the Company and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company under the Indenture; and
WHEREAS, the Company and General Mills, by due corporate actions have
determined to execute a supplemental indenture in substantially the form of this
First Supplemental Indenture, and all things necessary to make this First
Supplemental Indenture a valid, binding and legal agreement have been done and
performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, and of other valuable
consideration the receipt whereof is hereby acknowledged, the Company and
General Mills covenant and agree with the Trustee, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
ASSUMPTION OF THE INDENTURE AND THE SECURITIES
Section 1.1 ASSUMPTION AS TO COMPANY. On the Effective Date,
contemporaneous with the Merger, General Mills shall assume the due and punctual
payment of the principal of and interest on all of the Securities and the
performance of every covenant of the Indenture on the part of the Company to be
performed or observed.
ARTICLE II
CLOSING DOCUMENTS
Section 2.1. DOCUMENTS TO BE GIVEN TO TRUSTEE. In accordance with the
provisions of Section 8.4 of the Indenture, the Trustee shall receive from the
Company prior to the Effective Date an Officer's Certificate, certifying that
immediately prior to the Merger there exists no Event of Default under the
Indenture, and an Opinion of Counsel, each satisfying the provisions of Section
11.5 of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1. TRUSTEE'S ACCEPTANCE. The Trustee accepts the provisions
of this First Supplemental Indenture upon the terms and conditions set forth in
the Indenture;
provided, however, that the foregoing acceptance shall not make the Trustee
responsible in any manner whatsoever for the correctness of recitals or
statements by other parties herein.
Section 3.2. INDENTURE TO REMAIN IN FULL FORCE AND EFFECT. Except as
hereby expressly provided, the Indenture, as supplemented and amended by this
First Supplemental Indenture, is in all respects ratified and confirmed and all
its terms, provisions and conditions shall be and remain in full force and
effect.
Section 3.3. RIGHTS, ETC. OF TRUSTEE. All recitals in this First
Supplemental Indenture are made by the Company and General Mills only and not by
the Trustee. All of the provisions contained in the Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set forth
herein in full.
Section 3.4. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this First Supplemental Indenture made by the Company and General Mills shall
bind their respective successors and assigns, whether so expressed or not.
Section 3.5. NOTICES AND DEMANDS ON ISSUER. Any notice or demand which
by any provision of this First Supplemental Indenture or the Indenture is
required or permitted to be given or served by the Trustee, by the Holders of
Securities, or by the Holders of Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein or in the Indenture) addressed (until another
address of the Issuer is filed by the Issuer with the Trustee) to General Mills,
Inc., Number One General Mills Blvd., P.O. Box 1113, Minneapolis, MN 55440,
Attention: Corporate Secretary.
Section 3.6. CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this First Supplemental Indenture limits, qualifies or conflicts with the duties
imposed by operation of Trust Indenture Act Section 318(c), the imposed duties
shall control.
Section 3.7. GOVERNING LAW. This First Supplemental Indenture shall be
governed by and construed in accordance with the internal laws, but not the laws
as to conflicts or choice of law, of the State of New York.
Section 3.8. TITLES, HEADINGS, ETC. The Article and Section headings of
this First Supplemental Indenture are for convenience only and shall not affect
the construction hereof.
Section 3.9. SEPARABILITY CLAUSE. In case any provision in this First
Supplemental Indenture 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 3.10. EXECUTION IN COUNTERPARTS. This First Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
deemed an original, but such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date and year first above
written.
[Corporate Seal] RALCORP HOLDINGS, INC.
Attest: By: /s/ J. R. Micheletto
------------------------------
Name: J. R. Micheletto
/s/ R. W. Lockwood Title: Chief Executive Officer
- ---------------------- and President
R. W. Lockwood
Secretary
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this 31st day of January, 1997, before me personally appeared J. R.
Micheletto to me known to be the person described in and who executed the
foregoing instrument; that he or she knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed their name thereto by like authority.
/s/ Julie E. Neiger
------------------------------
Notary Public
[Corporate Seal] GENERAL MILLS, INC.
Attest: By: /s/ T. J. Brown
------------------------------
Name: T. J. Brown
/s/ Ivy Bernhardson Title: Vice President
- -----------------------
Secretary
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this 31st day of January, 1997, before me personally appeared T. J.
Brown, to me known to be the person described in and who executed the foregoing
instrument; that he or she knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
or she signed their name thereto by like authority.
/s/ Donna L. Bulback
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Notary Public
[Corporate Seal] THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
Attest: By: /s/ T. Marshall
------------------------------
Name: T. Marshall
/s/ Barbara G. Grosse Title: Trust Officer
- -----------------------
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
On this 29th day of January, 1997, before me personally appeared T.
Marshall, to me known to be the person described in and who executed the
foregoing instrument; that he or she knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed their name thereto by like authority.
/s/ N. Sierra
------------------------------
Notary Public