Exhibit 4.2
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AVON PRODUCTS, INC.
as Issuer
AND
THE CHASE MANHATTAN BANK
as Trustee
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Indenture
Dated as of November 9, 1999
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$500,000,000
$200,000,000 6.90% Notes due 2004
$300,000,000 7.15% Notes due 2009
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..............................
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
------------------- ------------
ss.310(a)(1) ............................................ 6.09
(a)(2) ............................................ 6.09
(a)(3) ............................................ Not Applicable
(a)(4) ............................................ Not Applicable
(b) ............................................ 6.08
6.10
ss.311(a) ............................................ 6.13
(b) ............................................ 6.13
ss.312(a) ............................................ 7.01
7.02(a)
(b) ............................................ 7.02(b)
(c) ............................................ 7.02(c)
ss.313(a) ............................................ 7.03(a)
(b) ............................................ 7.03(a)
(c) ............................................ 7.03(a)
(d) ............................................ 7.03(b)
ss.314(a) ............................................ 7.04
(b) ............................................ Not Applicable
(c)(1) ............................................ 1.02
(c)(2) ............................................ 1.02
(c)(3) ............................................ Not Applicable
(d) ............................................ Not Applicable
(e) ............................................ 1.02
ss.315(a) ............................................ 6.01
(b) ............................................ 6.02
(c) ............................................ 6.01
(d) ............................................ 6.01
(e) ............................................ 5.14
ss.316(a)(1)(A) ............................................ 5.12
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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Trust Indenture Indenture
Act Section Section
------------------- ------------
(a)(1)(B) ............................................. 5.13
(a)(2) ............................................. Not Applicable
(b) ............................................. 5.08
(c) ............................................. 1.04(c)
ss.317(a)(1) ............................................. 5.03
(a)(2) ............................................. 5.04
(b) ............................................. 10.03
ss.318(a) ............................................. 1.07
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.................................................. 2
SECTION 1.02. Compliance Certificates and Opinions......................... 14
SECTION 1.03. Form of Documents Delivered to Trustee....................... 14
SECTION 1.04. Acts of Holders; Record Dates................................ 15
SECTION 1.05. Notices, Etc., to Trustee and Company........................ 16
SECTION 1.06. Notice to Holders; Waiver.................................... 16
SECTION 1.07. Conflict with Trust Indenture Act............................ 17
SECTION 1.08. Effect of Headings and Table of Contents..................... 17
SECTION 1.09. Successors and Assigns....................................... 17
SECTION 1.10. Separability Clause.......................................... 17
SECTION 1.11. Benefits of Indenture........................................ 17
SECTION 1.12. Governing Law................................................ 17
SECTION 1.13. Legal Holidays............................................... 18
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally.............................................. 18
SECTION 2.02. Form of Face of Security..................................... 19
SECTION 2.03. Form of Reverse of Security.................................. 23
SECTION 2.04. Form of Trustee's Certificate of Authentication.............. 28
SECTION 2.05. Legend on Restricted Securities.............................. 28
ARTICLE 3
THE SECURITIES
SECTION 3.01. Title and Terms.............................................. 29
SECTION 3.02. Denominations................................................ 29
SECTION 3.03. Execution, Authentication, Delivery and Dating............... 30
SECTION 3.04. Temporary Securities......................................... 30
SECTION 3.05. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer..................................... 31
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities............. 33
SECTION 3.07. Payment of Interest; Interest Rights Preserved............... 34
SECTION 3.08. Persons Deemed Owners........................................ 35
SECTION 3.09. Book-entry Provisions for Global Securities.................. 35
SECTION 3.10. Cancellation................................................. 37
SECTION 3.11. Computation of Interest...................................... 37
SECTION 3.12. Special Transfer Provisions.................................. 37
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture....................... 40
SECTION 4.02. Application of Trust Money................................... 41
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default............................................ 41
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment........... 43
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................... 44
SECTION 5.04. Trustee May File Proofs of Claim............................. 45
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.. 45
SECTION 5.06. Application of Money Collected............................... 46
SECTION 5.07. Limitation on Suits.......................................... 46
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
Interest..................................................... 47
SECTION 5.09. Restoration of Rights and Remedies........................... 47
SECTION 5.10. Rights and Remedies Cumulative............................... 47
SECTION 5.11. Delay or Omission Not Waiver................................. 47
SECTION 5.12. Control by Holders........................................... 47
SECTION 5.13. Waiver of Past Defaults...................................... 48
SECTION 5.14. Undertaking for Costs........................................ 48
SECTION 5.15. Waiver of Stay or Extension Laws............................. 49
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ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.......................... 49
SECTION 6.02. Notice of Defaults........................................... 49
SECTION 6.03. Certain Rights of Trustee.................................... 49
SECTION 6.04. Not Responsible for Recitals................................. 51
SECTION 6.05. May Hold Securities.......................................... 51
SECTION 6.06. Money Held in Trust.......................................... 51
SECTION 6.07. Compensation and Reimbursement............................... 51
SECTION 6.08. Disqualification; Conflicting Interests...................... 52
SECTION 6.09. Corporate Trustee Required; Eligibility...................... 52
SECTION 6.10. Resignation and Removal; Appointment of Successor............ 52
SECTION 6.11. Acceptance of Appointment by Successor....................... 54
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business..................................................... 54
SECTION 6.13. Preferential Collection of Claims Against.................... 54
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.... 55
SECTION 7.02. Preservation of Information; Communications to Holders....... 55
SECTION 7.03. Reports by Trustee........................................... 55
SECTION 7.04. Reports by Company........................................... 56
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms......... 56
SECTION 8.02. Successor Substituted........................................ 57
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders........... 57
SECTION 9.02. Supplemental Indentures with Consent of Holders.............. 58
SECTION 9.03. Execution of Supplemental Indentures......................... 59
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SECTION 9.04. Effect of Supplemental Indentures............................ 59
SECTION 9.05. Conformity with Trust Indenture Act.......................... 59
SECTION 9.06. Reference in Securities to Supplemental Indentures........... 59
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal and Interest........................... 60
SECTION 10.02. Maintenance of Office or Agency............................. 60
SECTION 10.03. Money for Security Payments to Be Held in Trust............. 60
SECTION 10.04. Statement by Officers as to Default......................... 61
SECTION 10.05. Existence................................................... 62
SECTION 10.06. Liens....................................................... 62
SECTION 10.07. Limitation on Restricted Sale/Leaseback Transactions........ 62
SECTION 10.08. Reports and Delivery of Certain Information................. 62
SECTION 10.09. Resale of Certain Securities................................ 63
SECTION 10.10. Book-Entry System........................................... 63
SECTION 10.11. Waiver of Certain Covenants................................. 63
ARTICLE 11
OPTIONAL REDEMPTION OF SECURITIES
SECTION 11.01. Right of Optional Redemption; Redemption Price.............. 64
SECTION 11.02. Notice of Redemption; Deposit of Redemption Price with
Trustee; Partial Redemptions................................ 64
SECTION 11.03. Payment to Holders of Securities Called for Redemption...... 65
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Company's Option to Effect Defeasance or Covenant
Defeasance.................................................. 66
SECTION 12.02. Defeasance and Discharge.................................... 66
SECTION 12.03. Covenant Defeasance......................................... 66
SECTION 12.04. Conditions to Defeasance or Covenant Defeasance............. 67
SECTION 12.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Miscellaneous Provisions.......................... 69
SECTION 12.06. Reinstatement............................................... 70
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Exhibit A - Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit B - Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulations
INDENTURE, dated as of November 9, 1999, between AVON PRODUCTS, INC., a
corporation duly organized and existing under the laws of the State of New
York, as Issuer (herein called the "Company"), having its principal office at
1345 Avenue of the Americas, New York, New York 10105- 0196, and THE CHASE
MANHATTAN BANK, a banking corporation duly organized under the laws of the
State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 6.90%
Notes due 2004 (the "Notes due 2004") and its 7.15% Notes due 2009 (the "Notes
due 2009", and with the Notes due 2004, collectively herein called the
"Securities," which term includes Exchange Securities as defined in Section
1.01) of substantially the tenor and amount hereinafter set forth, and to
provide therefor the Company has duly authorized the execution and delivery of
this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchases of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
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(iii) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
(iv) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt," in respect to any Sale/Leaseback Transaction, means,
as of any time of determination, the present value (discounted at the rate per
annum equal to the rate of interest implicit in the lease involved in such
Sale/Leaseback Transaction, as determined in good faith by the Company) of the
obligation of the lessee thereunder for rental payments (excluding, however,
any amounts required to be paid by such lessee, whether or not designated as
rent or additional rent, on account of maintenance and repairs, insurance,
taxes, assessments, water rates or similar charges or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales or
similar contingent awards) during the remaining term of such lease (including
any period for which such lease has been extended or may, at the option of the
lessor, be extended). In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such rental payments shall also include
the amount of such penalty, but no rental payments shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated.
"Board of Directors" means, with respect to any Person, either the board
of directors of such Person or any duly authorized committee of that board.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
3
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law, or executive order or governmental decree to be closed.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or any Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of the Securities. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee at the direction of the
Company.
"Comparable Treasury Price" means, with respect to any Redemption Date, as
determined by the Trustee (i) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such
quotations.
4
"Consolidated Net Tangible Assets" means (a) the total amount of assets
(less applicable reserves and other properly deductible items) which under GAAP
would be included on the most recent audited annual consolidated balance sheet
of the Company and its consolidated Subsidiaries after deducting therefrom,
without duplication, the sum of (i) all current liabilities and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, which in each case under GAAP would be
included on such consolidated balance sheet.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Capital Markets Fiduciary Services.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Default" means any event that is or with the passage of time or the
giving of notice or both would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 12.02.
"Depositary" means The Depository Trust Company until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean such successor Depositary.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Exchange Offer" means an exchange offer pursuant to a registration
statement under the Securities Act, registering securities substantially
identical to the Securities, as provided by the Registration Rights Agreement.
5
"Exchange Security" means any security issued by the Company (i) pursuant
to the Exchange Offer, (ii) upon the registration of transfer of a Security
registered for resale on a Resale Registration Statement or (iii) upon the
registration of transfer of, or in exchange for, Securities which are Exchange
Securities.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, in each case, as in effect in the United States on the date hereof.
"Global Security" means a Security in global form registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"IAI Security" has the meaning specified in Section 2.01.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of (i) borrowed money evidenced
by bonds, notes, debentures or similar instruments, (ii) indebtedness secured
by a mortgage, pledge, lien, charge, encumbrance of any security interest
existing on property owned by such Person, (iii) the reimbursement obligations,
contingent or otherwise, in connection with any letters of credit actually
issued or amounts representing the balance that constitutes an accrued expense
or trade payable or (iv) any lease of property by such Person as lessee which
is reflected in such Person's consolidated balance sheet as a capitalized lease
in accordance with GAAP, in the case of items of Indebtedness under (i) through
(iii) above to the extent that any such items (other than letters of credit)
would appear as a liability on such Person's consolidated balance sheet in
accordance with GAAP, and also includes, to the extent not otherwise included,
any obligation by such Person to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the ordinary
course of business), Indebtedness of another Person.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes of this instrument and any such supplemental
6
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., X.X. Xxxxxx
Securities Inc., Banc of America Securities LLC, Chase Securities Inc.,
Deutsche Bank Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Warburg
Dillon Read LLC.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Securities.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans, advances
or capital contributions, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Issue Date" means the date the Securities are originally issued under
this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity, on a Redemption Date or by
declaration of acceleration or otherwise.
"Non-U.S. Person" means a Person who is not a U.S. person, as defined in
Regulation S.
7
"Offering Memorandum" means the Offering Memorandum dated November 4,
1999, offering the Securities for sale as provided therein.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or any Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 10.04 shall be the
principal executive, financial or accounting officer of the Company.
"Offshore Global Securities" has the meaning specified in Section 2.01.
"Offshore Physical Securities" has the meaning specified in Section 2.01.
"Opinion of Counsel" means a written opinion of counsel, who may be
external or in-house counsel for the Company, and who shall be acceptable to
the Trustee.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that if such Securities are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given to the Holders as herein provided, or provision satisfactory to
a Responsible Officer of the Trustee shall have been made for giving such
notice; and
(iii) Securities which have been paid or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a protected purchaser in whose hands such Securities are valid
obligations of the Company;
8
provided, however, that, in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the Holders
of the Notes due 2004 and the Holders of the Notes due 2009 shall be treated as
a single series and (ii) Securities owned by the Company or any other obligor
upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, interest on or Redemption Price of any Securities on behalf of
the Company. The Trustee shall initially be the Paying Agent.
"Permitted Liens" means any of the following: (a) Liens on any Principal
Property acquired by the Company or a Subsidiary after the date of this
Indenture to secure or provide for the payment or financing of all or any part
of the purchase price thereof or construction of fixed improvements thereon
(prior to, at the time of or within 180 days after the latest of the
acquisition, completion of construction or commencement of commercial operation
thereof); (b) Liens on any shares of stock or Principal Property acquired by
the Company or a Subsidiary after the date of this Indenture existing at the
time of such acquisition; (c) Liens on any shares of stock or Principal
Property of a corporation which is merged into or consolidated with the Company
or a Subsidiary or substantially all of the assets of which are acquired by the
Company or a Subsidiary; (d) Liens securing Indebtedness of a Subsidiary owing
to the Company or another Subsidiary; (e) Liens existing on the date of this
Indenture; (f) Liens on any Principal Property being constructed or improved
securing loans to finance such construction or improvements; (g) Liens in favor
of governmental bodies of the United States or any State thereof or any other
country or political subdivision thereof to secure partial, progress or advance
payments pursuant to any contract or statute, or to secure any Indebtedness
incurred or guaranteed for the purpose of financing all or any part of the cost
of acquiring, constructing or improving the property subject to such Liens; (h)
Liens securing taxes, assessments or governmental charges or levies not yet
delinquent, or already delinquent but the validity of which is being contested
in good faith; (i) Liens arising by reason of deposits necessary to qualify the
Company or any Subsidiary to conduct business,
9
maintain self-insurance, or obtain the benefit of, or comply with, any law; and
(j) extensions, renewals or replacement of Liens referred to in the foregoing
clauses provided that the Indebtedness secured is not increased nor the Lien
extended to any additional assets.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Physical Securities" has the meaning specified in Section 2.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing plant, testing or research
and development facility, distribution facility, processing plant or warehouse
(including, without limitation, land, fixtures and equipment), owned or leased
by the Company or any Subsidiary (including any of the foregoing acquired or
leased after the date of this Indenture) and located within the United States
of America, its territories and possessions, unless the Board of Directors of
the Company determines in good faith that such plant or facility is not of
material importance to the total business conducted by the Company and its
consolidated Subsidiaries.
"Purchase Agreement" means the Purchase Agreement, dated as of November 4,
1999, entered into by the Company and the Initial Purchasers in connection with
the sale of the Securities.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A.
"Redemption Date" when used with respect to any Security to be redeemed,
means any date which is a Business Day fixed for such redemption by the Company
pursuant to Section 11.02 of this Indenture.
"Redemption Price" has the meaning specified in Section 11.01.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
10
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer, at 5:00 p.m., New
York City time, on the third Business Day preceding such Redemption Date.
"Reference Treasury Dealers" means Xxxxxxx Xxxxx Xxxxxx Inc., X.X. Xxxxxx
Securities Inc., Banc of America Securities LLC, Chase Securities Inc.,
Deutsche Bank Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Warburg
Dillon Read LLC and their respective successors; provided, however, that if any
Reference Treasury Dealer shall cease to be a primary U.S. Government
securities dealer (a "Primary Treasury Dealer"), the Company shall substitute
another nationally recognized investment banking firm that is a Primary
Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Security to be
redeemed, the remaining scheduled payments of principal thereof and interest
thereon that would be due after the related Redemption Date but for that
redemption; provided, however, that if such Redemption Date is not an Interest
Payment Date with respect to such Security, the amount of the next succeeding
scheduled interest payment thereon shall be reduced by the amount of interest
accrued thereon to such Redemption Date.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of November 9, 1999, between the Company and the Initial Purchasers,
for the benefit of themselves and the Holders, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 1 or November 1 (whether or not a Business Day), as the case
may be, immediately preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Resale Registration Statement" means a registration statement under the
Securities Act registering the Securities for resale pursuant to the terms of
the Registration Rights Agreement.
"Responsible Officer" means any officer of the Trustee within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also, with respect to a particular matter,
any other officer of the Trustee to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Restricted Global Security" means a Global Security representing
Restricted Securities.
11
"Restricted Sale/Leaseback Transaction" means any Sale/Leaseback
Transaction entered into by the Company or any Subsidiary after the date of
this Indenture, except: (i) Sale/Leaseback Transactions entered into by and
between the Company or a Subsidiary and one or more Subsidiaries of the
Company; (ii) Sale/Leaseback Transactions as to which, during the period
commencing 60 days prior to and ending 120 days after entering into such
Sale/Leaseback Transaction, the Company or a Subsidiary applies an amount equal
to the Attributable Debt with respect to such Sale/Leaseback Transaction to the
acquisition, directly or indirectly and in whole or in part, of one or more
Principal Properties or to the retirement of long-term Indebtedness (other than
mandatory prepayment or retirement) of the Company or any Subsidiary; and (iii)
Sale/Leaseback Transactions involving the taking back of a lease for a period
of three years or less.
"Restricted Securities" has the meaning specified in Section 2.05.
"Rule 144" means Rule 144 under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Sale/Leaseback Transaction" means any arrangement, directly or
indirectly, with any Person whereby the Company or any Subsidiary shall sell or
transfer any Principal Property whether now owned or hereafter acquired, and
then or thereafter rent or lease as lessee such Principal Property or any part
thereof which the Company or such Subsidiary, as the case may be, intends to
use for substantially the same purpose as the Principal Property being sold or
transferred.
"Secured Debt" has the meaning specified in Section 10.06.
"Securities" has the meaning specified in the first paragraph of the
Recitals of the Company.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Special Record Date" for the payment of Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
12
"Stated Maturity," when used with respect to the Securities or any
instalment of interest thereon, means the date specified in the Securities as
the fixed date on which the principal thereof or such instalment of interest is
due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second Business Day immediately preceding that Redemption Date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that Redemption Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"Unrestricted Global Security" means a Global Security representing
Securities which are not Restricted Securities.
"U.S. Global Securities" has the meaning specified in Section 2.01.
"U.S. Government Obligation" has the meaning specified in Section 12.04.
"U.S. Physical Securities" has the meaning specified in Section 2.01.
13
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers' Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representa-
14
tions by, counsel, unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction,
15
notice, consent, waiver or other action, or to vote on any action, authorized
or permitted to be given or taken by Holders. If not set by the Company prior
to the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section
7.01) prior to such first solicitation or vote, as the case may be. With regard
to any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 1.05. Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Capital Markets Fiduciary Services, or
(ii) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Treasurer.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any
16
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the
parties hereto and their respective successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
17
SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the Interest Payment Date or at the Stated Maturity, provided that no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or Stated Maturity or, as the case may be.
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor, the Internal Revenue Code of 1986,
as amended, and regulations thereunder, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
Securities offered and sold in reliance on Rule 144A shall be issued in
the form of permanent U.S. Global Securities in registered form in
substantially the form set forth in this Article (the "U.S. Global
Securities"). Securities offered and sold in offshore transactions in reliance
on Regulation S shall be issued, subject to certain exceptions, in the form of
permanent Global Securities in registered form in substantially the form set
forth in this Article (the "Offshore Global Securities"). The aggregate
principal amount of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided.
Securities offered and sold in reliance on any other exemption from
registration under the Securities Act other than as described in the preceding
paragraph, and those securities offered and sold in offshore transactions in
reliance on Regulation S that cannot be issued in the form of Global Securities
under the laws of the relevant jurisdiction (the "Offshore Physical
Securities"), shall be issued in the form of permanent certificated Securities
in registered form, in substantially the form set forth in this Article (the
"U.S. Physical Securities"). The Offshore Physical Securities and the U.S.
Physical Securities are sometimes collectively referred to as the "Physical
Securities."
18
Securities sold to Institutional Accredited Investors (the "IAI
Securities") shall be issued in definitive, fully registered form without
interest coupons, substantially in the form of Security set forth in this
Article. IAI Securities shall be delivered to such Institutional Accredited
Investor(s) only upon the execution and delivery to the Initial Purchasers, the
Company and the Trustee of an Accredited Investor Letter, substantially in the
form of the letter attached as Annex A to the Offering Memorandum. Securities
shall cease to be IAI Securities upon certain transfers as provided in Section
3.12.
SECTION 2.02. Form of Face of Security. [INCLUDE IF SECURITY IS A
RESTRICTED SECURITY -- THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT), (B) IT IS AN "INSTITUTIONAL
ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D)
OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN U.S. PERSONS IN OFFSHORE
TRANSACTIONS MEETING THE REQUIREMENTS OF RULE 904 UNDER REGULATION S UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO
19
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE
IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND
OTHER TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO
ANY SUCH AMENDMENT OR SUPPLEMENT.]
[INCLUDE IF SECURITY IS NOT AN EXCHANGE SECURITY -- THE HOLDER OF THIS
SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, A REGISTRATION RIGHTS
AGREEMENT, DATED AS OF NOVEMBER 9, 1999, ENTERED INTO BY THE COMPANY FOR THE
BENEFIT OF CERTAIN HOLDERS FROM TIME TO TIME OF SECURITIES.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
20
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF) DTC, ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
AVON PRODUCTS, INC.
[6.90% Note due 2004]
[7.15% Note due 2009]
CUSIP No. __________ $________
Avon Products, Inc., a corporation duly organized and existing under the
laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars [INCLUDE IF SECURITY IS A
GLOBAL SECURITY -- (which amount may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, in accordance with the rules and procedures of the Depositary)]
on November 15, [2004] [2009], and to pay interest thereon from November 9,
1999 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on May 15 and November 15 in each year,
commencing May 15, 2000 at the rate of [6.90%] [7.15%] per annum, until the
principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1 or November 1 (whether or not a Business
Day), as the case may be, immediately preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the
21
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. Payment of the principal of and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register. If this
Security is a Global Security, then notwithstanding the foregoing, each such
payment will be made in accordance with the procedures of the Depositary as
then in effect.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AVON PRODUCTS, INC.
By________________________________
Attest:
____________________________________
22
SECTION 2.03. Form of Reverse of Security. This Security is one of a duly
authorized issue of Securities of the Company designated as its [6.90% Notes
due 2004, limited in aggregate principal amount to $200 million][7.15% Notes
due 2009, limited in aggregate principal amount to $300 million] (herein called
the "Securities"), issued and to be issued under an Indenture, dated as of
November 9, 1999 (herein called the "Indenture"), between the Company and The
Chase Manhattan Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
The Securities are redeemable in whole or in part, at the option of the
Company at any time and from time to time, on not less than 30 or more than 60
days' prior notice mailed to the Holders of the Securities, at a Redemption
Price equal to the greater of (i) 100% of the principal amount of the
Securities to be redeemed and (ii) the sum of the present values of the
Remaining Scheduled Payments thereon discounted to the Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus [20 basis points with respect to the Notes due 2004]
[25 basis points with respect to the Notes due 2009], together in either case
with accrued interest on the principal amount being redeemed to the Redemption
Date.
Subject to payment by the Company of a sum sufficient to pay the amount
due on redemption, interest on this Security (or portion hereof if this
Security is redeemed in part) shall cease to accrue upon the Redemption Date of
this Security (or portion hereof if this Security is redeemed in part).
The Securities do not have the benefit of a sinking fund.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- In the event of a deposit or
withdrawal of an interest in this Security, including an exchange, transfer,
repurchase or conversion of this Security in part only, the Trustee, as
custodian of the Depositary, shall make an adjustment on its records to reflect
such deposit or withdrawal in accordance with the rules and procedures of the
Depositary.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as
amended, upon the request of a Holder of a Restricted Security, the Company
will promptly furnish or cause to be furnished Rule 144A Information
23
(as defined below) to such Holder of Restricted Securities, or to a prospective
purchaser of any such security designated by any such Holder, to the extent
required to permit compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"). "Rule 144A Infor
mation" shall be such information as is specified pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto).]
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time, upon
compliance with certain conditions set forth therein, of (i) the entire
Indebtedness evidenced by this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Outstanding
Securities, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Outstanding
Securities a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
24
instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple of $1,000 above that
amount. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
25
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Security to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax
ID number of assignee)
and irrevocably appoint _____________________________________, agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: _____________ Signed:____________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: ________________________________
[Include if Security is not an Exchange Security -- In connection with any
transfer of this Security occurring prior to the date which is the earlier of
(i) the date of the declaration by the Commission of the effectiveness of a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
November 9, 2001 the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
this Security is being transferred:
[Check One]
(1) |_| to the Company or a subsidiary thereof; or
26
(2) |_| pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) |_| to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) |_| outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act; or
(5) |_| pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) |_| pursuant to an effective registration statement under the
Securities Act; or
(7) |_| pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof; provided that if box (3), (4), (5) or
(7) is checked, the Company may require, prior to registering any such transfer
of the Securities, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (3) or (4)) and other
information as the Company may reasonably request to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Security
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.12 of the Indenture
shall have been satisfied.
Date: _____________ Signed:____________________________
(Sign exactly as your name
appears on the other side of
this Security)
27
Signature Guarantee: ________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date: _____________ Signed:___________________________]
NOTICE: To be executed by an executive officer.
SECTION 2.04. Form of Trustee's Certificate of Authentication. This is one
of the Securities referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By_________________________________
Authorized Officer
SECTION 2.05. Legend on Restricted Securities. During the period beginning
on November 9, 1999 and ending on the date two years from such date, any
Security including any Security issued in exchange therefor or in lieu thereof,
shall be deemed a "Restricted Security" and shall be subject to the
restrictions on transfer provided in the legends set forth on the face of the
form of Security in Section 2.02; provided, however, that the term "Restricted
Security" shall not include any Securities as to which restrictions have been
terminated in accordance with Section 3.05. All Securities shall bear the
applicable legends set forth on the face of the form of Security in Section
2.02. Except as provided in Section 3.05 and Section 3.12, the Trustee shall
not issue any unlegended Security until it has received an Officers'
Certificate from the Company directing it to do so.
28
ARTICLE 3
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $200 million for the Notes due 2004 and $300 million for the Notes
due 2009, except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 3.04, 3.05, 3.06 or 9.06.
The Securities shall be known and designated as (i) the "Notes due 2004"
of the Company with a Stated Maturity on November 15, 2004, and bearing
interest at the rate of 6.90% per annum, from November 9, 1999 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, payable semiannually on May 15 and November 15,
commencing May 15, 2000 until the principal thereof is paid or made available
for payment and (ii) the "Notes due 2009" of the Company with a Stated Maturity
on November 15, 2009, and bearing interest at the rate of 7.15% per annum, from
November 9, 1999 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semiannually on May 15 and November 15, commencing May 15, 2000 until the
principal thereof is paid or made available for payment.
The principal of and interest on the Securities shall be payable at the
office or agency of the Company in The City of New York maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by wire transfer or by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
The Securities shall not have the benefit of a sinking fund.
The Securities shall not be superior in right of payment to, and shall
rank pari passu with, all other unsecured and unsubordinated Indebtedness of
the Company.
The Securities shall be subject to defeasance at the option of the Company
as provided in Article Twelve.
SECTION 3.02. Denominations. The Securities shall be issuable only in
registered form without coupons and in denominations of $100,000 and any
integral multiple of $1,000 above that amount.
29
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities. The Company Order shall specify
the amount of Securities to be authenticated, whether such Securities are Notes
Due 2004 or Notes Due 2009 and whether such Securities are to be Exchange
Securities, and shall further specify the amount of such Securities to be
issued as a Global Security, as Offshore Physical Securities or as U.S.
Physical Securities. The Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
30
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.02, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 3.05. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer. (a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section
10.02 being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
(the "Security Registrar") for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an office
or agency of the Company designated pursuant to Section 10.02 for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of any authorized denominations and of a like aggregate principal
amount and tenor each such Security bearing such restrictive legends as may be
required by this Indenture (including Sections 2.02, 2.05 and 3.12).
At the option of the Holder and subject to the other provisions of this
Section 3.05 and to Section 3.12, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
31
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing. As a condition to
the registration of transfer of any Restricted Securities, the Company or the
Trustee may require evidence satisfactory to them as to the compliance with the
restrictions set forth in the legend on such securities.
Except as provided in the following sentence and in Section 3.12, all
Securities originally issued hereunder and all Securities issued upon
registration of transfer or exchange or replacement thereof shall be Restricted
Securities and shall bear the legend required by Sections 2.02 and 2.05, unless
the Company shall have delivered to the Trustee (and the Security Registrar, if
other than the Trustee) a Company Order stating that the Security is not a
Restricted Security and may be issued without such legend thereon. Securities
which are issued upon registration of transfer of, or in exchange for,
Securities which are not Restricted Securities shall not be Restricted
Securities and shall not bear such legend.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04 or 9.06 not involving any transfer.
The Company shall not be required to exchange or register a transfer of
any Security (i) during the 15-day period immediately preceding the mailing of
any notice of redemption of any Security, or (ii) after any notice of
redemption has been given to Holders of Securities, except, where such notice
provides that such Security is to be redeemed only in part, the Company shall
be required to exchange or register a transfer of the portion thereof not to be
redeemed.
(b) Beneficial ownership of every Restricted Security shall be subject to
the restrictions on transfer provided in the legends required to be set forth
on the face of each Restricted Security pursuant to Sections 2.02 and 2.05,
unless such restrictions on transfer shall be terminated in accordance with
this Section 3.05(b) or Section 3.12. The Holder of each Restricted Security,
by such Holder's acceptance thereof, agrees to be bound by such restrictions on
transfer.
The restrictions imposed by this Section 3.05 and Sections 2.02, 2.05 and
3.12 upon the transferability of any particular Restricted Security shall cease
and terminate upon delivery by the Company to the Trustee of an Officers'
Certificate stating that such Restricted Security has been sold pursuant to an
effective
32
registration statement under the Securities Act or transferred in compliance
with Rule 144 under the Securities Act (or any successor provision thereto).
Any Restricted Security as to which the Company has delivered to the Trustee an
Officers' Certificate that such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of
such Restricted Security for exchange to the Security Registrar in accordance
with the provisions of this Section 3.05, be exchanged for a new Security, of
like tenor and aggregate principal amount, which shall not bear the restrictive
legends required by Sections 2.02 and 2.05. The Company shall inform the
Trustee in writing of the effective date of any registration statement
registering the Securities under the Securities Act. The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned registration statement.
As used in the preceding two paragraphs of this Section 3.05, the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Security.
(c) Neither the Trustee nor any of its agents shall (i) have any duty to
monitor compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation on any
transfers or exchanges other than as specifically required hereunder.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, or has been called for redemption in
full, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
33
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed
34
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving
payment of principal of and (subject to Section 3.07) interest on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
SECTION 3.09. Book-entry Provisions for Global Securities. (a) The Global
Securities initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for the Depositary and (iii) bear legends as set forth on the face of the form
of Security in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global
35
Security, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of any Holder.
(b) Transfers of the Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be
transferred or exchanged, in whole or in part, for Physical Securities in
accordance with the rules and procedures of the Depositary and the provisions
of Section 3.12. In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global
Securities if (A) such Depositary has notified the Company (or the Company
becomes aware) that the Depositary (i) is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act when the Depositary is required to be so
registered to act as such Depositary and, in both such cases, no successor
Depositary shall have been appointed within 90 days of such notification or of
the Company becoming aware of such event, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security and the
Outstanding Securities shall have become due and payable pursuant to Section
5.02 and the Trustee has requested that Physical Securities be issued or (C)
the Company has decided to discontinue use of book-entry transfers through the
Depositary (or a successor Depositary); provided that Holders of Securities
offered and sold in reliance on Rule 144A or Regulation S in the form of
permanent certificated Securities in registered form shall have the right,
subject to applicable law, to request that such Securities be exchanged for
interests in the applicable Global Security.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more Physical Securities
are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be
deemed
36
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
the Global Security, an equal aggregate principal amount of Physical Securities
of authorized denominations and the same tenor.
(e) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in the Global Security pursuant to paragraph (c) or
(d) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 3.12, bear the legend regarding transfer restrictions applicable to the
Physical Securities set forth on the face of the form of Security in Section
2.02.
(f) The Holder of the Global Securities may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 3.10. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Trustee shall cancel
and destroy all Securities surrendered for registration of transfer, exchange,
payment, redemption or cancellation and shall deliver certificates of
destruction to the Company, all in accordance with its customary practices. If
the Company shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation. The Company may not issue new Securities to replace Securities it
has paid in full or delivered to the Trustee for cancellation.
SECTION 3.11. Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.12. Special Transfer Provisions. (a) Transfers to Non-QIB
Institutional Accredited Investors and Non-U.S. Persons. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Security constituting a Restricted Security to any Institutional
Accredited Investor which is not a QIB or to any Non-U.S. Person to which
Securities in the form of Global Securities cannot be issued:
(i) the Security Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Security
37
bears the legend required by Sections 2.02 and 2.05, if (x) the requested
transfer is after November 9, 2001 or (y) (1) in the case of a transfer to
an Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons), the proposed transferee has delivered to the Security
Registrar a certificate substantially in the form of Exhibit A hereto or
(2) in the case of a transfer to a Non-U.S. Person, the proposed
transferor has delivered to the Security Registrar a certificate
substantially in the form of Exhibit B hereto, together in the case of
clause (1) or clause (2) with such other certifications, legal opinions or
other information as the Company may reasonably require to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the Security
Registrar of (x) the certificate, if any, required by paragraph (i) above
and (y) instructions given in accordance with the Depositary's and the
Security Registrar's procedures,
whereupon (1) the Security Registrar shall reflect on its books and records the
date and (if the transfer does not involve a transfer of outstanding Physical
Securities) a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interest in the Global
Security to be transferred, and (b) the Company shall execute and the Trustee
shall authenticate and deliver one or more Physical Securities of like tenor
and amount.
If the Securities to be transferred consist of IAI Securities, the
following shall apply: (x) if such IAI Securities are proposed to be
transferred to an Institutional Accredited Investor which is not a QIB, upon
the registration of such transfer such Securities shall continue to be IAI
Securities, and (y) if such IAI Securities are proposed to be transferred to a
Non-U.S. Person, upon the registration of such transfer such Securities shall
cease to be IAI Securities.
(b) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a Security constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Security Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating, or
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has otherwise advised the Company and the Security Registrar in writing,
that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company
as it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security, upon
receipt by the Security Registrar of instructions given in accordance with
the Depositary's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Global Security in an amount equal to the
principal amount of the Physical Securities to be transferred, and the
Trustee shall cancel the Physical Securities so transferred; and
(iii) If the Securities to be transferred consist of IAI Securities,
upon the registration of such transfer according to this Section such
Securities shall cease to be IAI Securities and may be evidenced by
Physical Securities or interests in a Global Security.
(c) Private Placement Legend. Upon the registration of transfer, exchange
or replacement of Securities not bearing the legends required by Sections 2.02
and 2.05, the Security Registrar shall deliver Securities that do not bear such
legends. Upon the registration of transfer, exchange or replacement of
Securities bearing the legends required by Sections 2.02 and 2.05, the Security
Registrar shall deliver only Securities that bear such legends unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 3.12 exists or
(ii) there is delivered to the Security Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Security bearing the legends
required by Sections 2.02 and 2.05, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this Indenture and
in such legends and agrees that it will transfer such Security only as provided
in this Indenture.
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The Security Registrar shall retain, in accordance with its customary
procedures, copies of all letters, notices and other written communications
received pursuant to this Section 3.12. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Security Registrar.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (B) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) will be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
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and the Company, in the case of (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness evidenced by
such Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of Clause
(a) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the provisions of the
last paragraph of Section 10.03, all money deposited with the Trustee pursuant
to Section 4.01 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with
the Trustee.
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default. "Event of Default", wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(a) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of any Security at its
Maturity; or
(c) default in the performance of any covenant, agreement or condition of
the Company in this Indenture or the Securities, and continuance of such
default for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities a written notice specifying such default and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(d) a default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Company, whether such Indebtedness now
exists or shall hereafter be created, which default shall constitute a failure
to pay the principal of Indebtedness having an aggregate principal amount
outstanding of at least $50 million when due and payable after the expiration
of any applicable grace period with respect thereto or shall have resulted in
such Indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
Indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default and requiring
the Company to cause such Indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; provided, however, that, subject to the
provisions of Sections 6.01 and 6.02, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or (B) the Trustee shall
have received written notice thereof from the Company, from any Holder or from
the holder of or trustee in respect of any such Indebtedness; or
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under
42
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(f) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. (a) If
an Event of Default (other than those specified in Sections 5.01(e) and
5.01(f)) occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities may declare the principal of all the Securities to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal shall become
immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of Default
specified in Sections 5.01(e) or 5.01(f), all Outstanding Securities will ipso
facto become due and payable without any declaration or other Act on the part
of the Trustee or any Holder.
(b) At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
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(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.07;
and
(ii) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(i) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(ii) default is made in the payment of the principal of any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection,
44
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion, subject to applicable law,
proceed to protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
45
SECTION 5.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively.
SECTION 5.07. Limitation on Suits. No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(ii) the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to
46
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 3.07) interest on
such Security on the respective Stated Maturities expressed in such Security
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in principal
amount of the Outstanding Securities shall have the right to direct the time,
47
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, provided that
(i) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default hereunder and its
consequences, except a default
(i) in the payment of the principal of or interest on any Security,
or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, in either case in respect to the
Securities, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorney's fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities, or
to any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the maturity of such
Security.
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SECTION 5.15. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 5.01(c), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
49
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors of the Company may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or
Event of Default (except as provided in Section 5.01(d)) with respect to the
Securities unless either (i) a Responsible Officer shall have actual knowledge
of such Default or Event of Default or (ii) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any
other obligor on such Securities or by any Holder of such Securities; and
50
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.04. Not Responsible for Recitals. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses
of
51
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 6.07 shall survive the
satisfaction and discharge of this Indenture. To secure the Company's payment
obligations in this Section 6.07, the Trustee shall have a Lien prior to the
Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal and interest on the Securities. Such Lien
shall survive the satisfaction and discharge of this Indenture. When the
Trustee incurs expenses or renders services after a Default or an Event of
Default specified in Sections 5.01(e) or 5.01(f) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
U.S. Code, Title 11 or any other similar foreign, federal or state law for the
relief of debtors.
SECTION 6.08. Disqualification; Conflicting Interests. If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or
(iv) a receiver of the Trustee or of its property shall be appointed
or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by a Company Order may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Company Order, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.06. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
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ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar; provided, however, that no such list need be
furnished so long as the Trustee is acting as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.01 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. Reports so required to be
transmitted at stated
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intervals of not more than 12 months shall be transmitted no later than January
31, in each calendar year, commencing in January, 2000.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company. The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission. In the event the Company is not subject to
Section 13 or 15(d) of the Exchange Act, it shall file with the Trustee upon
request the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(i) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest on
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all the Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Company as a result of
such transaction as having been incurred by the Company at the time of
such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article.
SECTION 8.02. Successor Substituted. Upon any consolidation of the Company
with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 8.01, the successor Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
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(b) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default for the benefit of the
Holders; or
(d) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this Indenture, provided
that such action pursuant to this Clause (d) shall not adversely affect the
interests of the Holders in any material respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or the Redemption Price thereof,
or change the place of payment where, or the coin or currency in which,
any Security or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or
(ii) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(iii) modify any of the provisions of this Section, Section 5.13 or
Section 10.11, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
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without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, in addition to the
documents required by Section 1.02, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal and Interest. The Company shall duly
and punctually pay the principal of and interest on the Securities in
accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company shall maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York)
where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 10.03. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of the principal of or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of or interest on any Securities, deposit
with a Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
60
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be repaid to the Company.
SECTION 10.04. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this
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Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.
SECTION 10.05. Existence. Subject to Article Eight, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.06. Liens. The Company shall not, and shall not permit any
Subsidiary to issue, assume, incur or guarantee any Indebtedness secured by a
Lien, except Permitted Liens, on any Principal Property or any shares of
Capital Stock of any Subsidiary ("Secured Debt"), without at the same time
effectively providing that the Securities shall be secured equally and ratably
with (or prior to) the Indebtedness so secured for so long as such Indebtedness
is so secured, unless after giving effect thereto, the aggregate amount of
Secured Debt, together with all Attributable Debt of the Company and its
Subsidiaries in respect of Restricted Sale/Leaseback Transactions would not
exceed 20% of Consolidated Net Tangible Assets.
SECTION 10.07. Limitation on Restricted Sale/Leaseback Transactions. The
Company shall not, and shall not permit any Subsidiary to, enter into, assume,
guarantee or otherwise become liable with respect to any Restricted
Sale/Leaseback Transaction, unless after giving effect thereto the aggregate
amount of Attributable Debt of the Company and its Subsidiaries in respect of
Restricted Sale/Leaseback Transactions, together (without duplication) with all
Secured Debt then outstanding, would not exceed 20% of Consolidated Net
Tangible Assets.
SECTION 10.08. Reports and Delivery of Certain Information. Whether or not
required by the rules and regulations of the Commission, so long as any
Securities are outstanding, the Company shall furnish to the Holders of the
Securities (i) all quarterly and annual financial information that is
substantially equivalent to that which would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if the Company were required
to file such Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section and, with respect to the
annual information only, a report thereon by the Company's certified
independent accountants and (ii) all reports that are substantially equivalent
to that which
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would be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports. In addition, whether or not required by the
rules and regulations of the Commission, the Company shall file a copy of all
such information with the Commission for public availability (unless the
Commission will not accept such a filing) and make such information available
to investors who request it in writing. So long as any of the Securities remain
Outstanding, the Company shall make available to any prospective purchaser of
Securities or beneficial owner of Securities in connection with any sale
thereof the information required by Rule 144A(d)(4) under the Securities Act,
until such time as the Company has either exchanged the Securities for
securities identical in all material respects which have been registered under
the Securities Act or until such time as the Holders thereof have disposed of
such Securities pursuant to an effective registration statement under the
Securities Act.
SECTION 10.09. Resale of Certain Securities. During the period beginning
on the Issue Date and ending on the date that is two years from the Issue Date,
the Company shall not, and shall not permit any of its "affiliates" (as defined
under Rule 144 under the Securities Act or any successor provision thereto) to,
resell any Securities which constitute "restricted securities" under Rule 144
that have been reacquired by any of them. The Trustee shall have no
responsibility in respect of the Company's performance of its agreement in the
preceding sentence.
SECTION 10.10. Book-Entry System. If the Securities cease to trade in the
Depositary's book-entry settlement system, the Company covenants and agrees
that it shall use reasonable efforts to make such other book-entry arrangements
that it determines are reasonable for the Securities.
SECTION 10.11. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 10.06 and 10.07 if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
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ARTICLE 11
OPTIONAL REDEMPTION OF SECURITIES
SECTION 11.01. Right of Optional Redemption; Redemption Price. The
Securities are redeemable in whole or in part, at the option of the Company at
any time and from time to time, on not less than 30 or more than 60 days' prior
notice to the Holders of the Securities, at a redemption price equal to the
greater of (i) 100% of the principal amount of the Securities to be redeemed
and (ii) the sum of the present values of the Remaining Scheduled Payments
thereon discounted, to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at a rate equal to the sum of
the applicable Treasury Rate plus, in the case of the Notes due 2004, 20 basis
points, or in the case of the Notes due 2009, 25 basis points, as the case may
be ("Redemption Price"), together in either case with accrued interest on the
principal amount being redeemed to the Redemption Date.
SECTION 11.02. Notice of Redemption; Deposit of Redemption Price with
Trustee; Partial Redemptions. Notice of redemption to the Holders of Securities
to be redeemed in whole or in part 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 Redemption Date, to the Holders of such Securities at
their last addresses as they shall appear upon the Security Register. 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 notice, to the
Holder of any Security designated for redemption in whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security. Any notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company.
The Company will deliver to the Trustee at least 15 days prior to the date
on which any notice of redemption is to be mailed to the Holders an Officers'
Certificate stating the aggregate principal amount of Securities to be
redeemed.
The notice of redemption to each Holder of Securities to be redeemed shall
identify the Securities to be redeemed (including CUSIP numbers) and shall
specify the principal amount of each Security held by such Holder to be
redeemed, the Redemption Date, the formula for determining the Redemption Price
applicable to such Security, the place or places of payment, that payment will
be made upon presentation and surrender of such Securities, that interest
accrued to the Redemption Date will be paid and that on and after said date
interest on the Securities, or on the portions thereof to be redeemed, will
cease to accrue. In case any Security is to be redeemed in part only, the
notice of
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redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the Redemption Date, upon surrender
of such Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued.
No later than 10:00 a.m., New York City time, on the Redemption Date
specified in any notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust) an amount of money sufficient to redeem on the Redemption Date all the
Securities so called for redemption at the applicable Redemption Price,
together with accrued interest to such Redemption Date.
If less than all the Securities are to be redeemed, the Trustee shall
select, either pro rata, by lot or by any other method it shall deem fair and
reasonable, Securities to be redeemed in whole or in part. Securities may be
redeemed in part in multiples of $1,000 only. The Trustee shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any 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 11.03. Payment to Holders of Securities Called for Redemption. If
notice of redemption has been given to the Holders as above provided, the
Securities or portions of Securities specified in such notice shall become due
and payable at the place stated in such notice on the Redemption Date specified
in such notice at the applicable Redemption Price, together with interest
accrued to such Redemption Date, and on and after said date (unless the Company
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 such
Securities shall cease from and after such Redemption Date 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 accrued interest to such Redemption Date. On
presentation and surrender of such Securities at an office or agency of the
Company maintained for that purpose in The City of New York, specified in said
notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable Redemption Price, together with
interest accrued thereon to such Redemption Date; provided that any semi-annual
payment of interest becoming due on such Redemption Date shall be
65
payable to the Holders of such Securities registered as such on the relevant
Regular Record Date subject to the terms and provisions of Section 3.07 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 applicable Redemption Date at the rate borne by the
Security prior to such Redemption Date.
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may elect, at its option at any time, to have Section
12.02 or Section 12.03 applied to the Outstanding Securities upon compliance
with the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution.
SECTION 12.02. Defeasance and Discharge. Upon the Company's exercise of
its option (if any) to have this Section applied to the Outstanding Securities,
the Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 12.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 12.04 and as more fully set forth in such Section, payments in respect
of the principal of and interest on such Securities when payments are due, (b)
the Company's obligations with respect to such Securities under Sections 3.04,
3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (d) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any) to have this
Section applied to the Outstanding Securities notwithstanding the prior
exercise of its option (if any) to have Section 12.03 applied to such
Securities.
SECTION 12.03. Covenant Defeasance. Upon the Company's exercise of its
option (if any) to have this Section applied to any Securities, (a) the Company
66
shall be released from its obligations under Section 10.06, Section 10.07 or
Article 8 and (b) the occurrence of any event specified in Sections 5.01(c)
(with respect to any of Section 10.06, Section 10.07 or Article 8) or 5.01(d)
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 12.04 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
5.01(c)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 12.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of Section 12.02 or
Section 12.03 to the then Outstanding Securities:
(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 6.09 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of such Securities, (i) money in an amount, or
(ii) 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 (iii) a combination thereof, in each case sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and interest on such Securities
on the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government Obligation"
means (x) any security which is (1) 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 (2) 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 (1) or (2),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any
67
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 12.02 apply to such
Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the date of
this instrument, there has been a change in the applicable Federal income tax
law, in either case (i) or (ii) 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 12.03 apply to such
Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(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 shall have occurred
and be continuing at the time of such deposit or, with regard to any such event
specified in Sections 5.01(e) and 5.01(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).
68
(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 Company is a party or by which the Company 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 Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 12.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.03, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 12.06, the Trustee and
any such other trustee are referred to collectively as the "Trustee") pursuant
to Section 12.04 in respect of the Outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.04
with respect to the Outstanding Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written
69
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 12.06. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article with respect to the
Outstanding Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 12.02 or
12.03 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 12.05 with respect to such Securities in accordance with
this Article; provided, however, that if the Company makes any payment of
principal of or interest on any such Security following such reinstatement of
its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
---------------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
70
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
AVON PRODUCTS, INC.
By /s/ Xxxxxx Xxxx
--------------------------------------
Xxxxxx Xxxx
Group Vice President Finance and
Treasurer
THE CHASE MANHATTAN BANK,
as Trustee,
By /s/ Sheik Wiltshire
--------------------------------------
Sheik Wiltshire
Assistant Vice President
71
EXHIBIT A
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
----------, ----
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
Re: Avon Products, Inc. (the "Company")
[6.90% Notes due 2004 (the "Notes")]
[7.15% Notes due 2009 (the "Notes")]
------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $_____ aggregate principal
amount of the Notes, we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated November 4, 1999, relating to the Notes and such other
information as we deem necessary in order to make our investment decision.
We acknowledge that we have read and agreed to the matters stated on page
2 of the Offering Memorandum and in the section entitled "Notice to
Investors" of the Offering Memorandum, including the restrictions on
duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture dated as
of November 9, 1999 relating to the Notes and the [6.90% Notes due 2004]
[7.15% Notes due 2009] (the "Indenture") and that any subsequent transfer
of the notes is subject to certain restrictions and conditions set forth
under the section entitled "Notice to Investors" of the Offering
Memorandum, the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended
(the "Securities Act").
A-1
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered
or sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell or otherwise transfer any Notes
prior to November 9, 2001, we will do so only (i) to the Company or any of
its subsidiaries, (ii) inside the United States in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (iii) inside the United
States to an institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf of a
U.S. broker-dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on transfer of
the Notes, substantially in the form of this letter, (iv) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act, (v) pursuant to the exemption from registration provided
by Rule 144 under the Securities Act (if available), or (vi) pursuant to
an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing any of the Notes from us
a notice advising such purchaser that resales of the Notes are restricted
as stated herein.
4. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section
3 of the Employee Retirement Income Security Act of 1974), except as
permitted in the section entitled "Notice to Investors" of the Offering
Memorandum.
5. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certification, legal
opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
A-2
7. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You, the Company and the Initial Purchasers (as defined in the Offering
Memorandum) are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By:________________________________
Authorized Signature
A-3
EXHIBIT B
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------, ----
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Market Fiduciary Services
Re: Avon Products, Inc. (the "Company")
[6.90% Notes due 2004 (the "Notes")]
[7.15% Notes due 2009 (the "Notes")]
------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $_________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
1. the offer of the Notes was not made to a person in the United
States;
2. either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
B-1
3. no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
5. we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By___________________________
Authorized Signature
B-2
