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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report: July 17, 1998
(Date of earliest event reported)
AUTOZONE, INC.
(exact name of registrant as specified in its charter)
NEVADA COMMISSION FILE: 62-1482048
(State or other jurisdiction 1-10714 (I.R.S. Employer Identification No.)
of incorporation or
organization)
123 SOUTH FRONT STREET
MEMPHIS, TENNESSEE 38103
(Address of Principal executive offices, including zip code)
(901) 495-6500
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
On July 6, 1998, AutoZone, Inc. (the "Company") filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-58565) (the "Registration Statement"), as amended by Amendment No.
1 to the Registration Statement filed with the Commission on July 10, 1998,
relating to the registration under the Securities Act of 1933, as amended, of up
to $400,000,000 aggregate offering price of debt securities, preferred stock,
common stock, debt warrants, equity warrants and/or units of the Company, which
Registration Statement was declared effective on July 15, 1998.
In connection with the Registration Statement, the Company entered into (i)
a purchase agreement (the "Purchase Agreement") and related terms agreement (the
"Terms Agreement") by and among the Company, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation and
Lehman Brothers Inc. on July 17, 1998 with respect to the Company's 6 1/2%
Debentures due July 15, 2008 (the "Debentures") and (ii) a senior indenture (the
"Senior Indenture") between the Company and The First National Bank of Chicago
dated as of July 22, 1998. Each of the Purchase Agreement, the Terms Agreement,
the Senior Indenture and a related form of global debenture is filed herewith as
an Exhibit and incorporated herein by this reference.
* * * * *
ITEM 7. FINANCIAL STATEMENT AND EXHIBITS.
Exhibit
No. Description
- ------- -----------
1.1 Purchase Agreement, dated July 17, 1998, by and among the
Company, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation and Lehman
Brothers Inc.
1.2 Terms Agreement, dated July 17, 1998, by and among the Company,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation and Lehman Brothers Inc.
4.1 Senior Indenture, dated as of July 22, 1998, between the Company
and The First National Bank of Chicago
4.2 Form of Global Debenture
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AUTOZONE, INC.
Date: July 17, 1998 By /s/ HARRY L. GOLDSMITH
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Name: Harry L. Goldsmith
Title: Senior Vice President,
Secretary and General Counsel
EXHIBIT INDEX
Sequentially
Exhibit Numbered
No. Description Page
- ------- ----------- ------------
1.1 Purchase Agreement, dated July 17, 1998,
by and among the Company, Merrill Lynch,
Pierce, Fenner & Smith Incorporated,
Donaldson, Lufkin & Jenrette Securities
Corporation and Lehman Brothers Inc.
1.2 Terms Agreement, dated July 17, 1998, by
and among the Company, Merrill Lynch,
Pierce, Fenner & Smith Incorporated,
Donaldson, Lufkin & Jenrette Securities
Corporation and Lehman Brothers Inc.
4.1 Senior Indenture, dated as of July 22,
1998, between the Company and The First
National Bank of Chicago
4.2 Form of Global Debenture
EXHIBIT 1.1
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AUTOZONE, INC.
(a Nevada corporation)
PURCHASE AGREEMENT FOR
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COMMON STOCK, WARRANTS TO PURCHASE COMMON STOCK,
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PREFERRED STOCK, WARRANTS TO PURCHASE PREFERRED STOCK,
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DEPOSITARY SHARES,
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DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES,
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UNITS
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Dated: July 17, 1998
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TABLE OF CONTENTS
PAGE
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SECTION 1. Representations and Warranties.............................................................................4
(a) Representations and Warranties by the Company....................................................................4
(1) Compliance with Registration Requirements..................................................................4
(2) Incorporated Documents.....................................................................................5
(3) Independent Accountants....................................................................................5
(4) Financial Statements.......................................................................................5
(5) No Material Adverse Change in Business.....................................................................6
(6) Good Standing of the Company...............................................................................6
(7) Good Standing of Subsidiaries..............................................................................6
(8) Capitalization.............................................................................................7
(9) Authorization of this Underwriting Agreement and Terms Agreement...........................................7
(10) Authorization of Common Stock..............................................................................7
(11) Authorization of Preferred Stock and/or Depositary Shares..................................................7
(12) Authorization of Deposit Agreement.........................................................................8
(13) Authorization of Senior Debt Securities and/or Subordinated Debt Securities................................8
(14) Authorization of the Indentures............................................................................8
(15) Authorization of Warrants..................................................................................9
(16) Authorization of Warrant Agreement.........................................................................9
(17) Authorization of Underlying Securities.....................................................................9
(18) Descriptions of the Underwritten Securities, Underlying Securities, Indentures,
Deposit Agreement and Warrant Agreement...................................................................10
(19) Absence of Defaults and Conflicts.........................................................................10
(20) Absence of Proceedings....................................................................................11
(21) Accuracy of Exhibits......................................................................................11
(22) Absence of Further Requirements...........................................................................12
(23) Possession of Intellectual Property.......................................................................12
(24) Title to Property.........................................................................................12
(25) Investment Company Act....................................................................................12
(26) Environmental Laws........................................................................................13
(b) Officers' Certificates..........................................................................................13
SECTION 2. Sale and Delivery to Underwriters; Closing................................................................13
(a) Underwritten Securities.........................................................................................13
(b) Option Underwritten Securities..................................................................................13
(c) Payment.........................................................................................................14
(d) Denominations; Registration.....................................................................................14
SECTION 3. Covenants of the Company..................................................................................15
(a) Compliance with Securities Regulations and Commission Requests..................................................15
(b) Filing of Amendments............................................................................................15
(c) Delivery of Registration Statements.............................................................................15
i
(d) Delivery of Prospectuses.....................................................16
(e) Continued Compliance with Securities Laws....................................16
(f) Blue Sky Qualifications......................................................16
(g) Earnings Statement...........................................................17
(h) Reservation of Securities....................................................17
(i) Use of Proceeds..............................................................17
(j) Listing......................................................................17
(k) Restriction on Sale of Securities............................................17
(l) Reporting Requirements.......................................................17
SECTION 4. Payment of Expenses..................................................17
(a) Expenses.....................................................................17
(b) Termination of Agreement.....................................................18
SECTION 5. Conditions of Underwriters' Obligations..............................18
(a) Effectiveness of Registration Statement......................................18
(b) Opinion of Counsel for Company...............................................19
(c) Opinion of Counsel for Underwriters..........................................19
(d) Officers' Certificate........................................................19
(e) Accountant's Comfort Letter..................................................20
(f) Bring-down Comfort Letter....................................................20
(g) Ratings......................................................................20
(h) Approval of Listing..........................................................20
(i) No Objection.................................................................20
(j) Lock-up Agreements...........................................................20
(k) Over-Allotment Option........................................................20
(l) Additional Documents.........................................................21
(m) Termination of Terms Agreement...............................................21
SECTION 6. Indemnification......................................................22
(a) Indemnification of Underwriters..............................................22
(b) Indemnification of Company, Directors and Officers...........................23
(c) Actions against Parties; Notification........................................23
(d) Settlement without Consent if Failure to Reimburse...........................24
SECTION 7. Contribution.........................................................24
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.......25
SECTION 9. Termination..........................................................26
(a) Underwriting Agreement.......................................................26
(b) Terms Agreement..............................................................26
(c) Liabilities..................................................................26
SECTION 10. Default by One or More of the Underwriters...........................26
SECTION 11. Notices..............................................................27
ii
SECTION 12. Parties...........................................27
SECTION 13. GOVERNING LAW AND TIME............................28
SECTION 14. Effect of Headings................................28
iii
AUTOZONE, INC.
(a Nevada corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities,
Units
UNDERWRITING AGREEMENT
July 17, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
AutoZone, Inc., a Nevada corporation (the "Company"), proposes to issue and
sell up to $400,000,000 aggregate initial public offering price of its (i)
shares of common stock, par value $.01 per share (the "Common Stock"), (ii)
warrants to purchase shares of Common Stock (the "Common Stock Warrants"), (iii)
shares of preferred stock, par value $.01 per share (the "Preferred Stock"),
(iv) warrants to purchase shares of Preferred Stock (the "Preferred Stock
Warrants"), (v) senior or subordinated debt securities (the "Debt Securities"),
(vi) warrants to purchase Debt Securities (the "Debt Security Warrants") or
(vii) units consisting of two ore more of the foregoing securities (the
"Units"), or any combination thereof, from time to time, in or pursuant to one
or more offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each series of
Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable charter amendment, board resolution or certificate of designations
(each, the "Certificate of Designations") relating to such series of Preferred
Stock. A series of Preferred Stock may be represented by depositary shares (the
"Depositary Shares") that are evidenced by depositary receipts (the "Depositary
Receipts") issued pursuant to a deposit agreement (each, a "Deposit Agreement")
among the Company, the depositary identified therein (the "Depositary") and the
registered holders of the Depositary Receipts issued thereunder.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of July
22, 1998 (the "Senior Indenture"), between the Company and The First National
Bank of Chicago, as trustee (the "Senior Trustee"), or as subordinated
indebtedness (the "Subordinated Debt Securities") under an indenture (the
"Subordinated Indenture," and collectively with the Senior Indenture, the
"Indentures," and each, an "Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Subordinated Trustee," and
collectively with the Senior Trustee, the "Trustees," and each, a "Trustee").
Each series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
stated maturity date, redemption and/or repayment provisions, sinking fund
requirements, conversion provisions (and terms of the related Underlying
Securities) and any other variable terms established by or pursuant to the
applicable Indenture.
Each issue of Common Stock Warrants, Preferred Stock Warrants and Debt
Security Warrants (collectively, the "Warrants") will be issued pursuant to a
separate warrant agreement (each, a "Warrant Agreement") between the Company and
the warrant agent identified therein (each, a "Warrant Agent"). The Warrants
may vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise price(s), expiration date(s) and terms of
the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Depositary Shares, Senior
Debt Securities, Subordinated Debt Securities or Units, or any combination
thereof, initially issuable by the Company and "Underlying Securities" shall
mean the Common Stock, Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities issuable upon exercise of the
Warrants, as applicable, or upon conversion of the Preferred Stock, Depositary
Shares, Senior Debt Securities or Subordinated Debt Securities or Units, as
applicable.
Whenever the Company determines to make an offering of Securities through
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), or through an underwriting syndicate managed by Merrill
Lynch, the Company will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, Merrill Lynch and such other underwriters, if any, selected by
Merrill Lynch (the "Underwriters," which term shall include Merrill Lynch,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The
Terms Agreement relating to the offering of Securities shall specify the number
or aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other than Merrill Lynch acting as
co-manager in connection with such offering, the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities, as well as the material variable terms of any
related Underlying Securities. In addition, if applicable, such Terms Agreement
shall specify whether
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the Company has agreed to grant to the Underwriters an option to purchase
additional Securities to cover over-allotments, if any, and the number or
aggregate principal amount, as the case may be, of Securities subject to such
option (the "Option Underwritten Securities"). As used herein, the term
"Underwritten Securities" shall include the Initial Underwritten Securities and
all or any portion of any Option Underwritten Securities. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written telecommunication between the
Company and Merrill Lynch, acting for itself and, if applicable, as
representative of any other Underwriters. Each offering of Underwritten
Securities through Merrill Lynch as sole Underwriter or through an underwriting
syndicate managed by Merrill Lynch will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-58565) and pre-
effective amendment no. 1 thereto for the registration of the Securities and the
Underlying Securities under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such post-
effective amendments thereto as may be required prior to the execution of the
applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the execution and
delivery of the applicable Terms Agreement. For purposes of this
3
Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents
and warrants to Merrill Lynch, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
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requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition,
each Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, neither the Prospectus nor any amendments and
4
supplements thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations") and,
when read together with the other information in the Prospectus, at the
date of the Prospectus, at the Closing Time and at each Date of Delivery,
if any, did not and will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(3) Independent Accountants. The accountants who certified the
-----------------------
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
--------------------
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries, or such other entity, as the case may
be, for the periods specified. Such financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data included in the
Prospectus
5
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the financial condition, earnings or business
affairs, or any development involving a prospective material adverse change
in the financial condition, earnings or business affairs, of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(6) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under
the laws of the State of Nevada and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under, or as contemplated under, this Underwriting Agreement and the
applicable Terms Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result in
a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of
-----------------------------
the Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) (each, a "Subsidiary" and, collectively,
the "Subsidiaries"), if any, has been duly organized and is validly
existing as a corporation or limited partnership in good standing under the
laws of the jurisdiction of its incorporation, has corporate or partnership
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation or partnership, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
or be in good standing would not result in a Material Adverse Effect.
Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock or partnership
interests of each Subsidiary has been duly authorized and is validly
issued, fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries (with the exception of the preferred stock of
AutoZone Development Corporation of which the Company owns, directly and
indirectly, 1,072 shares and others own 128 shares), free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
None of the outstanding shares of capital stock or
6
partnership interest of any Subsidiary was issued in violation of
preemptive or other similar rights of any securityholder of such
Subsidiary.
(8) Capitalization. If the Prospectus contains a "Capitalization"
--------------
section, the authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under such
section (except for (A) subsequent issuances thereof, if any, contemplated
under this Underwriting Agreement, (B) pursuant to reservations, agreements
or employee benefit plans referred to or incorporated by reference in the
Prospectus, and (C) up to 20,000 shares of capital stock issuable under the
Company's 1998 Director Stock Option Plan and up to 20,000 shares of
capital stock issuable under the Company's Director Compensation Plan or
(D) pursuant to the exercise of convertible securities or options referred
to or incorporated by reference in the Prospectus). Such shares of capital
stock have been duly authorized and validly issued by the Company and are
fully paid and non-assessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
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This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company.
(10) Authorization of Common Stock. If the Underwritten Securities
-----------------------------
being sold pursuant to the applicable Terms Agreement include Common Stock,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and delivered by the Company
pursuant to this Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of the
Company. No holder of such Underwritten Securities is or will be subject
to personal liability by reason of being such a holder.
(11) Authorization of Preferred Stock and/or Depositary Shares. If
---------------------------------------------------------
the Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Preferred Stock and/or Depositary Shares, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement. The
applicable Preferred Stock, when issued and delivered by the Company
pursuant to this Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor, or for the related Depositary
Shares, as the case may be, specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. In
addition, upon deposit by the Company of any Preferred Stock represented by
Depositary Shares with the applicable Depositary and the execution and
delivery by such Depositary of the Depositary Receipts evidencing such
Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, such Depositary Shares will represent
7
legal and valid interests in such Preferred Stock. No holder of such
Preferred Stock or Depositary Receipts evidencing Depositary Shares is or
will be subject to personal liability by reason of being such a holder. The
applicable Certificate of Designations will be in full force and effect
prior to the Closing Time.
(12) Authorization of Deposit Agreement. If the Underwritten
----------------------------------
Securities being sold pursuant to the applicable Terms Agreement include
Depositary Shares or if Debt Securities are convertible into Depositary
Shares represented by Preferred Stock, the applicable Deposit Agreement has
been, or prior to the issuance of such Depositary Shares will have been,
duly authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law). Each registered holder of a Depositary Receipt under
the applicable Deposit Agreement will be entitled to the proportional
rights, preferences and limitations of the Preferred Stock represented by
the Depositary Shares evidenced by such Depositary Receipt and to such
other rights as are granted to such registered holder in such Deposit
Agreement.
(13) Authorization of Senior Debt Securities and/or Subordinated Debt
----------------------------------------------------------------
Securities. If the Underwritten Securities being sold pursuant to the
----------
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(14) Authorization of the Indentures. If the Underwritten Securities
-------------------------------
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock is, or
Depositary Shares represented
8
by Preferred Stock are or Units are, convertible into Debt Securities, each
applicable Indenture has been, or prior to the issuance of the Debt
Securities thereunder will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(15) Authorization of Warrants. If the Underwritten Securities being
-------------------------
sold pursuant to the applicable Terms Agreement include Warrants, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and authenticated in the manner
provided for the applicable Warrant Agreement and delivered against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company, entitled to the
benefits provided by such Warrant Agreement and enforceable against the
Company in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(16) Authorization of Warrant Agreement. If the Underwritten
----------------------------------
Securities being sold pursuant to the applicable Terms Agreement include
Warrants, each applicable Warrant Agreement has been, or prior to the
issuance of such Underwritten Securities will have been, duly authorized,
executed and delivered by the Company and, upon such authorization,
execution and delivery, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(17) Authorization of Underlying Securities. If the Underlying
--------------------------------------
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Stock, Preferred Stock or
Depositary Shares, such Underlying Securities have been, or as of the date
of such Terms Agreement will have been, duly authorized and reserved for
issuance by the Company upon exercise of the Common Stock Warrants or
Preferred Stock Warrants, as applicable, or upon conversion of the related
Preferred Stock, Depositary Shares, Senior Debt Securities or Subordinated
Debt Securities or Units, as applicable. If the Underlying Securities
include Common Stock or Preferred Stock, such Underlying Securities, when
issued upon such exercise or
9
conversion, as applicable, will be validly issued, fully paid and non-
assessable and will not be subject to preemptive or other similar rights of
any securityholder of the Company. If the Underlying Securities include
Depositary Shares, such Underlying Securities, upon deposit by the Company
of the Preferred Stock represented thereby with the applicable Depositary
and the execution and delivery by such Depositary of the Depositary
Receipts evidencing such Depositary Shares, in each case pursuant to the
applicable Deposit Agreement, will represent legal and valid interests in
such Preferred Stock. No holder of such Common Stock, Preferred Stock or
Depositary Receipts evidencing Depository Shares is or will be subject to
personal liability by reason of being such a holder. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underlying Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized for
issuance by the Company upon the exercise of the Debt Security Warrants or
upon conversion of the related Preferred Stock or Depositary Shares, as
applicable. Such Underlying Securities, when issued and authenticated in
the manner provided for in the applicable Indenture and delivered in
accordance with the terms of the Debt Security Warrants or the related
Preferred Stock or Depositary Shares, as applicable, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Debt Securities payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(18) Descriptions of the Underwritten Securities, Underlying
-------------------------------------------------------
Securities, Indentures, Deposit Agreement and Warrant Agreement. The
---------------------------------------------------------------
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, Deposit Agreement and Warrant
Agreement, as of each Representation Date, and any Underlying Securities,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(19) Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its Subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the assets, properties or
operations of the Company or any of its Subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults that
would not result in a
10
Material Adverse Effect. The execution, delivery and performance of this
Underwriting Agreement, the applicable Terms Agreement and each applicable
Indenture, Warrant Agreement and Deposit Agreement and any other agreement
or instrument entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated hereby or thereby
or in the Registration Statement and the Prospectus and the consummation of
the transactions contemplated herein and in the Registration Statement and
the Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the Underwritten
Securities as described under the caption "Use of Proceeds" as well as the
issuance of any Underlying Securities) and compliance by the Company with
its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, (i) conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or (ii) result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any
of its Subsidiaries pursuant to, any Agreements and Instruments, nor (iii)
will such action result in any violation of the provisions of the charter
or by-laws of the Company or any of its Subsidiaries or (iv) result in any
violation of any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its Subsidiaries or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any of its subsidiaries.
(20) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the assets,
properties or operations thereof or the consummation of the transactions
contemplated under the Prospectus, this Underwriting Agreement, the
applicable Terms Agreement or any applicable Indenture, Warrant Agreement
or Deposit Agreement or the performance by the Company of its obligations
hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is
a party or of which any of their respective assets, properties or
operations is the subject which are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
11
(22) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement or any applicable Indenture, Warrant
Agreement or Deposit Agreement, except such as have been already made,
obtained or rendered, as applicable.
(23) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any written notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(24) Title to Property. The Company and its subsidiaries have good
-----------------
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (A) as otherwise
stated in the Registration Statement and the Prospectus or (B) those which
do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company or any of its subsidiaries. All of the leases
and subleases material to the business of the Company and its subsidiaries
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any of its subsidiaries has
received any written notice of any claim of any sort that has been asserted
by anyone adverse to the rights of the Company or any of its subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary of the continued
possession of the leased or subleased premises under any such lease or
sublease where such claim or claims, individually or in the aggregate,
would result in a Material Adverse Effect.
(25) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Underwritten Securities as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
12
(26) Environmental Laws. Except as otherwise stated in the
------------------
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened, to the
Company's knowledge, administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities and dated a Representation Date shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby on
such Representation Date.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the number or aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security, less
an amount equal to any dividends or distributions declared by the Company and
paid or payable on the Initial Underwritten Securities but not payable on the
Option Underwritten Securities. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Underwritten
13
Securities upon notice by Merrill Lynch to the Company setting forth the number
or aggregate principal amount, as the case may be, of Option Underwritten
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Underwritten Securities. Any such time and date of payment and delivery (each, a
"Date of Delivery") shall be determined by Merrill Lynch, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, unless otherwise agreed upon by Merrill Lynch
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total number or aggregate
principal amount, as the case may be, of Option Underwritten Securities then
being purchased which the number or aggregate principal amount, as the case may
be, of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities, subject to such adjustments as Merrill Lynch in its
discretion shall make to eliminate any sales or purchases of a fractional number
or aggregate principal amount, as the case may be, of Option Underwritten
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Brown & Wood
llp, or at such other place as shall be agreed upon by Merrill Lynch and the
Company, at 10:00 A.M. (New York City time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (New York City time) on any given day) business day after
the date of the applicable Terms Agreement (unless postponed in accordance with
the provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by Merrill Lynch and the
Company (such time and date of payment and delivery being herein called "Closing
Time"). In addition, in the event that the Underwriters have exercised their
option, if any, to purchase any or all of the Option Underwritten Securities,
payment of the purchase price for, and delivery of such Option Underwritten
Securities, shall be made at the above-mentioned offices of Brown & Wood llp, or
at such other place as shall be agreed upon by Merrill Lynch and the Company, on
the relevant Date of Delivery as specified in the notice from Merrill Lynch to
the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Merrill Lynch for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Merrill Lynch, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. Merrill Lynch,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities,
certificates for the Underwritten Securities or Depositary Receipts evidencing
the Depositary Shares, as applicable, shall be in such denominations and
registered in such names as Merrill Lynch may request in writing at least one
full business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be. The Underwritten Securities, certificates for the Underwritten
Securities or
14
Depositary Receipts evidencing the Depositary Shares, as applicable, will be
made available for examination and packaging by Merrill Lynch in The City of New
York not later than 10:00 A.M. (New York City time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with Merrill
------------------------
Lynch and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) immediately, and confirm
the notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give Merrill Lynch notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish Merrill Lynch with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which Merrill Lynch or counsel for the Underwriters
shall object. To the extent the distribution of Underwritten Securities has
been completed, the Company will not be required to provide Merrill Lynch with
reports it is required to file with the Commission under the 1934 Act.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Merrill Lynch and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to Merrill Lynch, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the
15
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of outside counsel for the Underwriters or for the Company,
to amend the Registration Statement in order that the Registration Statement
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of such outside counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
Merrill Lynch may designate and to maintain such qualifications in effect for a
period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities or any related Underlying Securities have been
so qualified, the Company will file such statements and reports as may be
required by the laws of
16
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock, Preferred
Stock and/or Depositary Shares, the Company will reserve and keep available at
all times, free of preemptive or other similar rights, a sufficient number of
shares of Common Stock and/or Preferred Stock, as applicable, for the purpose of
enabling the Company to satisfy any obligations to issue such Underlying
Securities upon exercise of the related Warrants, as applicable, or upon
conversion of the Preferred Stock, Depositary Shares, Senior Debt Securities or
Subordinated Debt Securities or Units, as applicable.
(i) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(j) Listing. The Company will use its reasonable efforts to effect the
listing of the Underwritten Securities and any related Underlying Securities,
prior to the Closing Time, on any national securities exchange or quotation
system if and as specified in the applicable Terms Agreement.
(k) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of Merrill
Lynch, directly or indirectly, issue, sell, offer or contract to sell, grant any
option for the sale of, or otherwise dispose of, the securities specified in
such Terms Agreement, except, in the case of an offering of Underwritten
Securities containing Common Stock or Equity Warrants or any Underwritten
Security convertible into Common Stock, the Company may issue Common Stock
pursuant to the exercise of any options granted by the Company under any option
plans described in the Prospectus or whose description is incorporated by
reference into the Prospectus and, the Company also may issue up to 20,000
shares of Common Stock under the Company's 1998 Director Stock Option Plan and
up to 20,000 shares of Common Stock under the Company's Director Compensation
Plan.
(l) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i)
17
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among Underwriters,
the Indentures, any Deposit Agreement, any Warrant Agreement and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities or any related Underlying
Securities, (iii) the preparation, issuance and delivery of the Underwritten
Securities and any related Underlying Securities, any certificates for the
Underwritten Securities or such Underlying Securities or Depositary Receipts
evidencing the Depositary Shares, as applicable, to the Underwriters, including
any transfer taxes and any stamp or other duties payable upon the sale, issuance
or delivery of the Underwritten Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of the Trustees, any Depositary and any Warrant Agent, and their
respective counsel, (v) the qualification of the Underwritten Securities and any
related Underlying Securities under state securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheet, and the Prospectus and
any amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities and any related Underlying Securities, if applicable, (viii) the fees
and expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities, and (x) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Section 2(l) of Schedule E of the bylaws
of the NASD), if applicable. Except as set forth in clauses (v) and (ix) of this
Section 4(a) or upon termination of this Agreement in accordance with the
provisions of Section 5 or 9(b)(i), the Company shall not be obligated to pay
any fees or disbursements of counsel for the Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop
18
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Underwritten
Securities and any related Underlying Securities, the specific method of
distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, Merrill Lynch shall
have received the favorable opinion, dated as of Closing Time, of Latham &
Watkins, the General Counsel of the Company and/or Schreck Morris, counsel for
the Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit B hereto or to the effect set
forth as an Exhibit to the applicable Terms Agreement.
(c) Opinion of Counsel for Underwriters. At Closing Time, Merrill Lynch
shall have received the favorable opinion reasonably satisfactory to the
Underwriters, dated as of Closing Time, of Brown & Wood llp, counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters. In giving such opinion, such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to Merrill Lynch. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the financial condition or in the earnings or business affairs, or any
development involving a prospective material adverse change in the financial
condition, earnings or business affairs, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and Merrill Lynch shall have received a certificate of the President
or a Vice President of the Company and of the chief financial officer or chief
accounting officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) are true and correct with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending or, to the
best of such officer's knowledge, are threatened by the Commission.
19
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Merrill Lynch shall have received from Ernst & Young
LLP a letter dated such date, in form and substance satisfactory to Merrill
Lynch, together with signed or reproduced copies of such letter for each of the
other Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, Merrill Lynch shall have
received from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, unless
the Underwritten Securities being sold pursuant to the applicable Terms
Agreement relate solely to Common Stock or Common Stock Warrants, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to Merrill
Lynch a letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to Merrill Lynch, confirming that the Underwritten
Securities have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement,
Merrill Lynch shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company or any of its subsidiaries hereunder shall be true and
20
correct as of each Date of Delivery, and, at the relevant Date of Delivery
Merrill Lynch shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof remains true
and correct as of such Date of Delivery.
(2) The favorable opinion of Latham & Watkins, the General Counsel of
the Company and/or Schreck Morris, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
(3) The favorable opinion of Brown & Wood llp, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to Merrill Lynch and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
Merrill Lynch pursuant to Section 5(f) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's other securities by
any such rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review its rating of
the Underwritten Securities or any of the Company's other securities.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be reasonably
satisfactory in form and substance to Merrill Lynch and counsel for the
Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by Merrill Lynch by notice to the Company at any
time at or prior to the Closing Time (or such Date of Delivery, as applicable),
and such
21
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(3) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
-------- -------
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further that the Company will not be liable to
any Underwriter with respect to any Preliminary Prospectus to the extent that
any such loss, liability, claim, damage or expense resulted from the fact that
such Underwriter, in contravention of a requirement of this Agreement
22
or applicable law, sold Securities to a person to whom such Underwriter failed
to send or give, at or prior to the Closing Date, a copy of the Final
Prospectus, as then amended or supplemented if: (i) the Company has previously
furnished copies thereof, in accordance with Section 3(d) of this Agreement at
least 48 hours prior to the Closing Time, to the Underwriters and the loss,
liability, claim, damage or expense of such Underwriter resulted from an untrue
statement or omission of a material fact contained in or omitted from the
Preliminary Prospectus which was corrected in the Final Prospectus as, if
applicable, amended or supplemented prior to the Closing Date and such Final
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person and (ii) such failure to give or send such
Final Prospectus by the Closing Date to the party or parties asserting such
loss, liability, claim, damage or expense would have cured the defect giving
rise to such loss, liability, claim, damage or expense.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such
23
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid written request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
written request prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party shall have
requested in writing an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 6(d) effected without its
written consent if (x) such indemnifying party reimburses such indemnified party
in accordance with such request to the extent it considers such request to be
reasonable; and (y) such indemnifying party provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
------------
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
24
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
25
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by Merrill Lynch upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. Merrill Lynch may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Merrill Lynch,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the New York Stock Exchange
or the American Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities or any
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Merrill Lynch shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Merrill Lynch shall not have completed such
arrangements within such 24-hour period, then:
26
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal amount,
as the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either Merrill Lynch or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder
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shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch at World Financial Center, North
Tower, New York, New York 10281-1201, attention of A. Scott LeMone; and notices
to the Company shall be directed to it at 123 South Front Street, Memphis,
Tennessee 38103, attention of Harry L. Goldsmith, Esq.
SECTION 12. Parties. This Underwriting Agreement and the applicable
-------
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, Merrill Lynch and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of
27
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
----------------------
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between Merrill Lynch and the Company in accordance with its terms.
Very truly yours,
AUTOZONE, INC.
By: /s/ Robert J. Hunt
_____________________________
Name: Robert J. Hunt
Title: Executive Vice President
By: /s/ Harry L. Goldsmith
_____________________________
Name: Harry L. Goldsmith
Title: Senior Vice President
and Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Cynthia Bates, Vice President
__________________________________
Authorized Signatory
29
Exhibit A
AUTOZONE, INC.
(a Nevada corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities,
Units
TERMS AGREEMENT
---------------
___________, 1998
To: AutoZone, Inc.
123 South Front Street
Memphis, Tennessee 38103
Ladies and Gentlemen:
We understand that AutoZone, Inc., a Nevada corporation (the "Company"),
proposes to issue and sell [_______ shares of its common stock, par value $.01
per share (the "Common Stock")] [________ shares of its preferred stock, par
value $.01 per share (the "Preferred Stock")] [in the form of _________
depositary shares (the "Depositary Shares") each representing _______ of a share
of Preferred Stock] [$ _______ aggregate principal amount of its [senior]
[subordinated] debt securities (the "Debt Securities")] [_______ warrants (the
"Common Stock Warrants") to purchase common stock, par value $.01 per share]
[_______ warrants (the "Preferred Stock Warrants") to purchase preferred stock,
par value $.01 per share] [________ warrants (the "Debt Security Warrants") to
purchase $_________ aggregate principal amount of [senior] [subordinated] debt
securities] [________units (the "Units") consisting of ________ ([such
securities also being hereinafter referred to as] the "[Initial] Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, we [the underwriters named below (the "Underwriters")] offer
to purchase [, severally and not jointly,] the [[number] [principal] [amount]
of] Underwritten Securities [opposite their names set forth below] at the
purchase price set forth below [, and a proportionate share of Option
Underwritten Securities set forth below, to the extent any are purchased].
A-1
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
-------------------------------------------------------------------------
________________
Total [$]
===
The Underwritten Securities shall have the following terms:
[Common Stock]
--------------
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
-----------------
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated
dividends, if any, from _____
Purchase price per share: $___ plus accumulated dividends, if any,
from _____
Other terms and conditions:
Closing date and location:
A-2
[Depositary Shares]
-----------------
[Title:
Fractional amount of Preferred Stock represented by each Depositary
Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $____ plus accumulated
dividends, if any, from ___
Purchase price per share: $____ plus accumulated dividends, if any,
from ___
Other terms and conditions:
Closing date and location:]
[Debt Securities]
----------------
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
A-3
If Fixed Price Offering, initial public offering price per share:
% of the principal amount, plus accrued interest [amortized original issue
discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued
interest [amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
A-4
[Common Stock] [Preferred Stock] [Debt Security] Warrants
---------------------------------------------------------
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt
Securities]: [Yes] [No]
Number of [Common Stock] [Preferred Stock] [Debt Security] Warrants issued with
each [share of Common Stock] [share of Preferred Stock] [$__________
principal amount of Debt Securities]:
Date(s) from which or period(s) during which [Common Stock] [Preferred
Stock] [Debt Security] Warrants are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Debt Security]
Warrants expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one
[Common Stock]
[Preferred Stock] [Debt Security] Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
[Units]
-----
Title:
Number:
Consisting of: [Number and title of securities]
Unit Agent:
All of the provisions contained in the document attached as Annex I hereto
entitled "AUTOZONE, INC.-- Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock, [Depositary Shares,] Debt
Securities, Warrants to Purchase Debt Securities and Units--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Counsel to the Company will be required to deliver an opinion in the form
attached hereto.
A-5
Please accept this offer no later than _______ o'clock P.M. (New York City
time) on ____________ by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: _________________________
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
AUTOZONE, INC.
By: _________________________
Name:
Title:
A-6
EXHIBIT 1.2
AUTOZONE, INC.
(a Nevada corporation)
Debt Securities
TERMS AGREEMENT
---------------
July 17, 1998
To: AutoZone, Inc.
123 South Front Street
Memphis, Tennessee 38103
Ladies and Gentlemen:
We understand that AutoZone, Inc., a Nevada corporation (the "Company"),
proposes to issue and sell $200,000,000 aggregate principal amount of its senior
debt securities (the "Debt Securities (such securities also being hereinafter
referred to as the "Initial Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, we the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the principal amount of Underwritten Securities opposite their names set forth
below at the purchase price set forth below.
$200,000,000
Underwriter of Initial Underwritten Securities
----------------------------------------------------------
Merrill Lynch & Co. $ 66,668,000
Donaldson Lufkin & Jenrette
Securities Corporation 66,666,000
Lehman Brothers Inc. 66,666,000
------------
Total $200,000,000
============
The Underwritten Securities shall have the following terms:
Debt Securities
---------------
Title: 6 1/2% Debentures due July 15, 2008
Rank: Senior
Ratings: Baa1/A-
Aggregate principal amount: $200,000,000
Denominations: $1,000 and any integral multiple thereof
Currency of payment: U.S. dollars
Interest rate or formula: 6 1/2%
Interest payment dates: Each January 15 and July 15
Regular record dates: January 1 and July 1
Stated maturity date: July 15, 2008
Redemption provisions: The Debentures are redeemable at the option of the
Company as described under the heading "Optional Redemption" on page 10 of
the base Prospectus, dated July 15, 1998
Sinking fund requirements: None
Conversion provisions: None
Listing requirements: None
Black-out provisions: None
Fixed or Variable Price Offering: Fixed Price Offering
If Fixed Price Offering, initial public offering price per share:
99.243% of the principal amount, plus accrued interest, if any, from the
date of issuance (July 22, 1998).
Form: Global note
Other terms and conditions: N/A
Closing date and location: July 22, 1998 at the offices of Brown & Wood LLP,
One World Trade Center, New York, New York 10048-0557
All of the provisions contained in the document attached as Annex I hereto
entitled "AUTOZONE, INC.-- Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock, Depositary Shares, Debt
Securities, Warrants to Purchase Debt Securities and Units--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Counsel to the Company will be required to deliver an opinion in the form
attached hereto.
2
Please accept this offer no later than 4:00 o'clock P.M. (New York City
time) on July 17, 1998 by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Cynthia Bates, Vice President
__________________________________
Authorized Signatory
Acting on behalf of itself and the other named
Underwriters.
Accepted:
AUTOZONE, INC.
By: /s/ Robert J. Hunt
____________________________
Name: Robert J. Hunt
Title: Executive Vice President
By: /s/ Harry L. Goldsmith
____________________________
Name: Harry L. Goldsmith
Title: Senior Vice President
and Secretary
3
EXHIBIT 4.1
AUTOZONE, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
Indenture
Dated as of July 22, 1998
Senior Debt Securities
RECONCILIATION AND TIE BETWEEN
THE TRUST INDENTURE ACT OF 1939
AND INDENTURE,
DATED AS OF JULY __, 1998*
Trust Indenture
Act Section INDENTURE SECTION
- --------------- -----------------
Section 310(a)(1)................................609
(a)(2)......................................609
(a)(3)...........................Not Applicable
(a)(4)...........................Not Applicable
(a)(5).................................608, 610
(b)....................................608, 610
(c)..............................Not Applicable
Section 311(a)...................................613
(b).........................................613
Section 312(a)...........................701, 702(a)
(b)......................................702(b)
(c).........................................703
Section 313(a)...................................703
(b).........................................703
(c).........................................703
(d).........................................703
Section 314(a).............................704, 1005
(b)..............................Not Applicable
(c)(1)......................................102
(c)(2)......................................102
(c)(3)...........................Not Applicable
(d)..............................Not Applicable
(e).........................................102
(f)..............................Not Applicable
Section 315(a)...................................601
(b).........................................602
(c).........................................601
(d).........................................601
(e).........................................514
Section 316(a)...................................101
(a)(1)(A)...................................512
(a)(1)(B)...................................513
(a)(2)...........................Not Applicable
(b).........................................508
Section 317(a)(1)................................503
(a)(2)......................................504
(b)........................................1003
Section 318(a)...................................107
(c).........................................107
* This table shall not, for any purpose, be deemed to be a part of the
Indenture.
i
TABLE OF CONTENTS
PAGE
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions................................................1
Section 102 Compliance Certificates and Opinions......................10
Section 103 Form of Documents Delivered to Trustee....................10
Section 104 Acts of Holders; Record Dates.............................11
Section 105 Notices, Etc., to Trustee and Company.....................12
Section 106 Notice to Holders; Waiver.................................13
Section 107 Conflict with Trust Indenture Act.........................13
Section 108 Effect of Headings and Table of Contents..................13
Section 109 Successors and Assigns....................................14
Section 110 Separability Clause.......................................14
Section 111 Benefits of Indenture.....................................14
Section 112 Governing Law.............................................14
Section 113 Legal Holidays............................................14
ARTICLE TWO
SECURITY FORMS
Section 201 Forms of Securities.......................................14
Section 202 Form of Trustee's Certificate of Authentication...........15
Section 203 Securities in Global Form.................................15
ARTICLE THREE
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series......................16
Section 302 Denominations.............................................18
Section 303 Execution, Authentication, Delivery and Dating............18
Section 304 Temporary Securities......................................20
Section 305 Registration, Registration of Transfer and
Exchange and Book-Entry Securities........................20
Section 306 Mutilated, Destroyed, Lost and Stolen Securities..........22
Section 307 Payment of Interest; Interest Rights Preserved............23
Section 308 Persons Deemed Owners.....................................24
Section 309 Cancellation..............................................25
Section 310 Computation of Interest...................................25
ii
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture.............................25
Section 402 Application of Trust Money..........................................27
ARTICLE FIVE
REMEDIES
Section 501 Events of Default...................................................27
Section 502 Acceleration of Maturity; Rescission and Annulment..................29
Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee.............................................................31
Section 504 Trustee May File Proofs of Claim....................................31
Section 505 Trustee May Enforce Claims Without Possession of Securities.........32
Section 506 Application of Money Collected......................................32
Section 507 Limitation on Suits.................................................33
Section 508 Unconditional Right of Holders to Receive Principal, Premium
and Interest........................................................33
Section 509 Restoration of Rights and Remedies..................................33
Section 510 Rights and Remedies Cumulative......................................34
Section 511 Delay or Omission Not Waiver........................................34
Section 512 Control by Holders..................................................34
Section 513 Waiver of Defaults..................................................35
Section 514 Undertaking for Costs...............................................35
Section 515 Waiver of Stay or Extension Laws....................................36
ARTICLE SIX
THE TRUSTEE
Section 601 Certain Duties and Responsibilities.................................36
Section 602 Notice of Defaults..................................................37
Section 603 Certain Rights of Trustee...........................................37
Section 604 Not Responsible for Recitals or Issuance of Securities..............38
Section 605 May Hold Securities.................................................39
Section 606 Money Held in Trust.................................................39
Section 607 Compensation and Reimbursement......................................39
Section 608 Disqualification; Conflicting Interests.............................40
Section 609 Corporate Trustee Required; Eligibility.............................40
Section 610 Resignation and Removal; Appointment of Successor...................40
Section 611 Acceptance of Appointment by Successor..............................41
Section 612 Merger, Conversion, Consolidation or Succession to Business.........42
Section 613 Preferential Collection of Claims Against Company...................43
Section 614 Appointment of Authenticating Agent.................................43
iii
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses of
Holders.............................................................45
Section 702 Preservation of Information; Communications to Holders..............45
Section 703 Reports by Trustee..................................................45
Section 704 Reports by Company..................................................46
Section 705 Holders' Meetings...................................................46
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company May Consolidate, Etc., Only on Certain Terms....................48
Section 802 Successor Substituted...................................................49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders..................50
Section 902 Supplemental Indentures With Consent of Holders.....................51
Section 903 Execution of Supplemental Indentures................................52
Section 904 Effect of Supplemental Indentures...................................53
Section 905 Conformity with Trust Indenture Act.................................53
Section 906 Reference in Securities to Supplemental Indentures..................53
Section 907 Notice of Supplemental Indenture....................................53
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium and Interest.........................53
Section 1002 Maintenance of Office or Agency....................................54
Section 1003 Money for Securities Payments to Be Held in Trust..................54
Section 1004 Corporate Existence................................................55
Section 1005 Statement by Officers as to Default................................55
Section 1006 Payment of Taxes...................................................56
Section 1007 Limitation on Liens................................................56
Section 1008 Calculation of Original Issue Discount.............................56
Section 1009 Waiver of Certain Covenants........................................56
iv
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article.....................................57
Section 1102 Optional Redemption..........................................57
Section 1103 Election to Redeem; Notice to Trustee........................57
Section 1104 Selection by Trustee of Securities to Be Redeemed............57
Section 1105 Notice of Redemption.........................................58
Section 1106 Deposit of Redemption Price..................................59
Section 1107 Securities Payable on Redemption Date........................59
Section 1108 Securities Redeemed in Part..................................59
ARTICLE TWELVE
SINKING FUNDS
Section 1201 Applicability of Article.....................................59
Section 1202 Satisfaction of Mandatory Sinking Fund Payments with
Securities...................................................60
Section 1203 Redemption of Securities for Mandatory Sinking Fund..........60
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 1301 Applicability of Article.....................................61
Section 1302 Notice of Repayment Date.....................................61
Section 1303 Deposit of Repayment Price...................................61
Section 1304 Securities Payable on Repayment Date.........................62
Section 1305 Securities Repaid in Part....................................62
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
Section 1401 General......................................................62
Section 1402 Right to Convert.............................................63
Section 1403 Manner of Exercise of Conversion Privilege; Delivery of
Common Stock; No Adjustment for Interest or Dividends........63
Section 1404 Cash Payments in Lieu of Fractional Shares...................64
Section 1405 Conversion Price Adjustments; Effect of Reclassification,
Mergers, Consolidations and Sales of Assets..................64
Section 1406 Taxes on Shares Issued.......................................68
Section 1407 Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock........................69
Section 1408 Responsibility of Trustee....................................69
v
Section 1409 Covenant to Reserve Shares..................................................69
Section 1410 Other Conversions...........................................................70
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501 Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance......................................................70
Section 1502 Defeasance and Discharge....................................................70
Section 1503 Covenant Defeasance.........................................................71
Section 1504 Conditions to Defeasance or Covenant Defeasance.............................71
Section 1505 Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions....................................73
Section 1506 Reinstatement...............................................................73
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1601 Immunity of Incorporators, Stockholders, Officers and
Directors...................................................................74
vi
INDENTURE, dated as of July 22, 1998, between AUTOZONE, INC., a corporation
duly organized and existing under the laws of the State of Nevada (herein called
the "Company"), having its principal office at 123 South Front Street, Memphis,
Tennessee 38103, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsubordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity 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 such redemption date, plus .20%.
"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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended
or, if at any time after the execution 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.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
2
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"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 President or
a 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 to be redeemed 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 such Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) of the Company
and its consolidated Subsidiaries after deducting therefrom (a) all current
liabilities (excluding any Debt for money borrowed having a maturity of less
than 12 months from the date of the most recent consolidated balance sheet of
the Company but which by its terms is renewable or extendible beyond 12 months
from such date at the option of the borrower) and (b) all goodwill, trade names,
patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the most recent consolidated balance sheet of the Company and
its consolidated Subsidiaries and computed in accordance with GAAP.
"Conversion Price" means with respect to any series of Securities which are
convertible into Common Stock or Preferred Stock, the price per share of Common
Stock or Preferred Stock, as the case may be, at which the Securities of such
series are so convertible as set forth in the Board Resolution with respect to
such series (or in any supplemental indenture entered into pursuant to Section
901(9) with respect to such series), as the same may be adjusted from time to
time in accordance with Section 1405 (or such supplemental indenture pursuant to
Section 1401).
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126, Attention: Corporate Trust
Services Division, except for purposes of Section 1002 such term
3
shall mean the office or agency of the Trustee in the Borough of Manhattan, The
City of New York, which office at the date hereof is located at The First
National Bank of Chicago, 14 Wall Street, Eighth Floor, New York, New York
10005.
"Corporation" includes corporations, associations, companies and business
trusts.
"Debt" means (a) all indebtedness of the Company (including Securities
issued hereunder) whether heretofore or hereafter incurred (i) for borrowed
money or (ii) in connection with the acquisition by the Company or a Subsidiary
of assets other than in the ordinary course of business, for the payment of
which the Company is liable directly or indirectly by guarantee, letter of
credit, obligation to purchase or acquire or otherwise, or the payment of which
is secured by a lien, charge or encumbrance on assets acquired by the Company,
(b) amendments, modifications, renewals, extensions and deferrals of any such
indebtedness and (c) any indebtedness issued in exchange for any such
indebtedness.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Global Security, a clearing agency registered under
the Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Company pursuant to Section 301 or 305
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder.
"Event of Default" has the meaning specified in Section 501.
"generally accepted accounting principles" or "GAAP" means, as of any date
of computation, generally accepted accounting principles in the United States,
consistently applied, that are in effect on the date of such computation.
"Global Security or Securities" means one or more fully registered
Securities in global form evidencing all or a part of a series of Securities
issued to the Depositary for such series or its nominee or registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
4
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any Property, any Mortgage or deed of trust,
pledge, hypothecation, security interest, lien, encumbrance or other security
arrangement of any kind or nature on or with respect to such Property.
"Loan Document" has the meaning specified in Section 501(5).
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or by repayment or otherwise.
"NNM" has the meaning specified in Section 1405(a)(v).
"Notice of Default" has the meaning specified in Section 501(4).
"Officers' Certificate" means a certificate signed by at least two officers
of the Company, one signature being that of the Chairman of the Board, the Vice
Chairman of the Board, the President, an Executive Vice President or a Senior
Vice President, and the other signature being that of the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"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 canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities 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, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
5
(iii) Securities which have been paid pursuant to Section 306 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 bona
fide purchaser in whose hands such Securities are valid obligations of the
Company; and
(iv) Securities with respect to which the Company has effected
defeasance as provided in Article Fifteen;
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, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, and (b) 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 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 (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Liens" means:
(i) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental changes or levies not yet due or Liens
for taxes being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);
(ii) statutory Liens of landlords and Liens of mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to
customary reservations or retentions of title arising in the ordinary
course of business, provided that any such Liens which are material secure
only amounts not yet due and payable or, if due and payable, are unfiled
and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and as
to which the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
6
(iii) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by the Company and its Subsidiaries in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(iv) Liens in connection with attachments or judgments
(including judgment or appeal bonds), provided that the judgments secured
shall, within 30 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall have been discharged
within 30 days after the expiration of any such stay;
(v) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of
the encumbered Property for its intended purposes;
(vi) leases or subleases granted to others not interfering in
any material respect with the business of the Company and its Subsidiaries
taken as a whole;
(vii) Liens on Property at the time such Property is acquired by
the Company or any of its Subsidiaries;
(viii) Liens on Property of any Person at the time such Person
becomes a Subsidiary of the Company;
(ix) Liens on receivables from customers sold to third parties
pursuant to credit arrangements in the ordinary course of business;
(x) Liens existing on the date hereof to secure Debt existing
on the date hereof or any extensions, amendments, renewals, refinancings,
replacements or other modifications thereto;
(xi) Liens on any Property created, assumed or otherwise
brought into existence in contemplation of the sale or other disposition of
the underlying Property, whether directly or indirectly, by way of share
disposition or otherwise;
(xii) Liens securing Debt of a Subsidiary of the Company to the
Company or to another Subsidiary of the Company;
(xiii) Liens in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or political
subdivision thereof, to secure partial, progress, advance or other
payments;
(xiv) Liens to secure Debt of joint ventures in which the
Company or any of its Subsidiaries has an interest, to the extent such
Liens are on Property of, or equity interests in, such joint ventures; and
7
(xv) other Liens on Property of the Company and its
Subsidiaries; provided that (a) with respect to Property existing as of the
date hereof (including Property acquired to replace Property existing on
the date hereof and Property acquired from the sale or refinancing of
Property existing on the date hereof), the aggregate fair market value of
such Property does not exceed 15% of the Company's Consolidated Net
Tangible Assets or (b) with respect to Property acquired after the date
hereof, such Property shall be acquired in the ordinary course of business.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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 306 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.
"Preferred Stock" means any stock of any class of the Company which has a
preference over Common Stock in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and that is not mandatorily redeemable or repayable, or
redeemable or repayable at the option of the Holder, otherwise than in shares of
Common Stock or Preferred Stock of another class or series or with the proceeds
of the sale of Common Stock or Preferred Stock.
"Property" means any building, structure or other facility, together with
the land upon which it is erected and fixtures comprising a part thereof, used
primarily for selling automotive parts and accessories or the warehousing or
distributing of such products, owned or leased by the Company or any Subsidiary
of the Company.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Treasury Dealer" means each of Merrill Lynch & Co., Inc.,
Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers Inc. and
their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"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
8
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer by 5:00 p.m. on the third Business Day preceding such redemption
date.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee customarily performing corporate trust functions.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or such installment of
principal, premium, if any, or interest on such Security is due and payable.
"Subsidiary" means a corporation or a limited partnership more than 50% of
the outstanding voting stock or limited partnership interests 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.
"Time of Determination" has the meaning specified in Section 1405(a)(v).
"Trading Day" has the meaning specified in Section 1405(a)(v).
"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 or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
9
"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.
"United States" means the United States of America.
"U.S. Government Obligations" has the meaning specified in Section 1504.
"Vice President," when used with respect to the Company, 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 102 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 an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate provided for
in Section 1005) shall include:
(1) A statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103 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
10
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion are 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 104 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 an 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 601) 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 ownership of Securities shall be proved by the Security Register.
(d) 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.
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(e) 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
of Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series 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 701) prior to such first solicitation or vote, as the case may be. With
regard to any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of such series on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(f) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 301 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(h) The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
Section 105 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,
12
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106 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, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice to a Holder which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives such notice. 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 or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to give
notice of any event to Holders by mail when such notice is required to be given
pursuant to any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 107 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties 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 shall be
deemed to be so excluded, as the case may be.
Section 108 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.
13
Section 109 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 110 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 111 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 successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided that this
Section 111 shall not limit the rights of any Holder of a Global Security to
give any notice or take any action, or appoint any agents, with regard to any
part or different parts of the principal amount of such Global Security pursuant
to Section 104.
Section 112 Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of said state without
regard to the conflicts of laws and rules of said state.
Section 113 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) 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, Redemption Date, Repayment Date, sinking fund payment
date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201 Forms of Securities.
-------------------
The Securities of each series shall be in such form or forms (including
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and
14
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or may
be produced in any other manner permitted by the rules of any securities
exchange upon which the Securities may be listed and (with respect to Global
Securities of any Series) the rules of the Depositary, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By _______________________________
Authorized Officer
Section 203 Securities in Global Form.
-------------------------
If any Security of a series is issuable in global form, such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and also may provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner
as shall be specified in such Security. Any instructions by the Company with
respect to a Security in global form, after its initial issuance, shall be in
writing but need not comply with Section 102.
15
ARTICLE THREE
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Maturity of the Securities of such series. There shall be
established in or pursuant to a Board Resolution, and, to the extent not set
forth therein, set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities will be issued;
(3) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of that
series pursuant to Section 304, 305, 306, 906, 1107, 1305 or 1403);
(4) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable), or the method
of determination thereof, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date
or, if the principal amount payable at the Stated Maturity of any of the
Securities will not be determinable as of any one or more dates prior to
the Stated Maturity, the amount which will be deemed to be such principal
amount as of any such date for any purpose, including the principal amount
thereof which will be due and payable upon any Maturity other than the
Stated Maturity or which will be deemed to be Outstanding as of any such
date (or, in any such case, the manner in which such deemed principal
amount is to be determined);
(6) if other than the Corporate Trust Office, the place or places
where the principal of (and premium, if any) and interest on Securities of
the series shall be payable;
16
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any mandatory sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(11) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Securities, the terms and
conditions upon which such Global Security may be exchanged in whole or in
part for other individual securities and the Depositary for such Global
Security or Securities;
(12) any addition to or change in the Events of Default which applies
to any Securities of the series;
(13) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(14) if the Securities of the series are convertible into Common Stock
or Preferred Stock, the Conversion Price therefor, the period during which
such Securities are convertible and any terms and conditions for the
conversion of such Securities which differ from Article Fourteen;
(15) the nature and terms of the security for any secured Securities;
(16) the form and terms of any guarantee of the Securities;
(17) the application, if any, of Section 1502 or 1503 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fifteen;
(18) the listing of the Securities on any securities exchange or the
inclusion in any other market or quotation or trading system;
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
17
(20) if the principal amount payable at the stated maturity of any of
such Securities will not be determinable as of any one or more dates prior
to the stated maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity
other than the stated maturity or which will be deemed to be outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is so determined); and
(21) any trustee or fiscal or authenticating or paying agent, issuing
or paying agent, transfer agent or registrar or any other person or entity
to act in connection with such Securities for or on behalf of the holders
thereof or the Company or an affiliate.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate, to the extent
applicable, or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuance of
additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Board Resolution or
the Officers' Certificate setting forth the terms of the series.
Section 302 Denominations.
-------------
The Securities of each series shall be issuable in registered or bearer
form with or without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
Section 303 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, an Executive Vice
President or one of its Senior Vice Presidents and 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 of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities upon Company Order. If all the Securities of any
one series are not to be originally issued at one time and if a
18
Board Resolution relating to such Securities shall so permit, such Company Order
may set forth procedures (acceptable to the Trustee) for the issuance and
authentication of such Securities.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 303 or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series.
Unless otherwise provided in the form of Security for any series, 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 of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
19
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Global Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the Securities of
such series having the same terms issued and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Section 304 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, 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. Every such temporary Security shall be executed
by the Company and shall be authenticated and delivered by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Security in lieu of which it is issued.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305 Registration, Registration of Transfer and Exchange and
-------------------------------------------------------
Book-Entry Securities.
- ---------------------
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 1002 a register (the register maintained in such
office being herein sometimes 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 exchanges and transfers of Securities. The
Person responsible for the maintenance of the Security Register is referred to
herein as the "Security Registrar." The Trustee is hereby initially appointed
Security Registrar
20
for the purpose of registering Securities and transfers of Securities as herein
provided. The exchange of and the transfer of Securities also may be registered
at the office of the Trustee.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, 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 the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series (except Global
Securities) may be exchanged for other Securities of the same series (except
Global Securities) of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) 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.
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 304, 906, 1107, 1305 or 1403 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section 305, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
a series shall no longer be registered or in good standing
21
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, the Company
shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, shall
authenticate and deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series, in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
canceled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 305 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. The Trustee shall,
at Company expense, deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
22
Section 306 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, together with such
other security or indemnity as may be reasonably required by the Trustee to save
it harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and 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 upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, subject to satisfaction of
the foregoing conditions. 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 of any series 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 of that series 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 307 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, 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. The Company and the Trustee understand that interest on any
Global Security will be disbursed or credited by the Depositary to the Persons
having ownership thereof pursuant to a book entry or other system maintained by
the Depositary.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of
23
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (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 of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series 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 of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such 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 308 Persons Deemed Owners.
---------------------
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 premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue,
24
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309 Cancellation.
------------
Unless otherwise specified pursuant to Section 301(7) for Securities of any
series all Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any mandatory sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee, except that if a Global Security is so surrendered, the Company shall
execute and the Trustee shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security or
Securities in a denomination equal to and in exchange for the portion of the
Global Security so surrendered not to be paid, redeemed, repaid or registered
for transfer or exchange or for credit. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of in accordance with its customary procedures and
a certificate of disposition shall be delivered to the Company, unless, by a
Company Order, the Company shall direct the canceled Securities be returned to
it.
Section 310 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture.
---------------------------------------
Upon Company Request, this Indenture shall cease to be of further effect
with respect to the Securities of a particular series (except as to any
surviving rights to convert Securities into Common Stock, or rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such Securities, when:
(1) either:
25
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to 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,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust for the purpose sums sufficient to pay
and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) 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; and
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of a particular series, the obligations of the Company
to the Trustee under Section 607, the obligations, if any, of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003, in each case with respect to such Securities, shall survive.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements of the Company under this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 607, the obligations of the Trustee
26
under Section 402 and the last paragraph of Section 1003 shall survive with
respect to such series of Securities.
Section 402 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 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 premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All money deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
into Common Stock shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501 Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure to pay principal of (or premium, if any, on) any Security
of that series at its Maturity, upon redemption or otherwise; or
(2) failure to pay any interest upon any Security of that series when
due, and the default continues for 30 days; or
(3) default in the deposit of any mandatory sinking fund payment, when
and as due by the terms of the Securities of that series, and continuance
of such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in a Security of that series or in this Indenture (other
than a covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach 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 of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
27
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) or under any
mortgage, indenture (including this Indenture) or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any Subsidiary (each such
bond, debenture, note, evidence of indebtedness, mortgage, indenture or
instrument being referred to as a "Loan Document"), whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay any portion of the principal of such
indebtedness 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 15 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 of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder,
if the aggregate outstanding principal amount of indebtedness under the
Loan Document with respect to which such default or acceleration has
occurred exceeds $20 million; provided, however, that if such default under
such Loan Document shall be cured by the Company or be waived by the
holders of such indebtedness or if such acceleration shall be rescinded or
annulled, in each case as may be permitted by such Loan Document, then the
Event of Default hereunder by reason of such default shall be deemed
likewise to have been thereupon cured or waived; and provided, further,
that, subject to the provisions of Sections 601 and 602, the Trustee shall
not be deemed to have knowledge of such default or acceleration unless
either (A) a Responsible Officer of the Trustee shall have actual knowledge
of such default or acceleration or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the holder
of any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Subsidiary in
an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or any Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or
any Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Subsidiary 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
(7) the commencement by the Company or any Subsidiary 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
28
bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company or any Subsidiary 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 any Subsidiary 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 or any Subsidiary in furtherance
of any such action.
Upon receipt by the Trustee of any proposed Notice of Default from any
Holder with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such proposed Notice of Default, which record date shall be at the close of
business on the day the Trustee receives such proposed Notice of Default. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such proposed Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, or their proxies, shall have joined in such proposed Notice of
Default prior to the day which is 90 days after such record date, such proposed
Notice of Default shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving (i) after expiration of such 90-day
period, a new proposed Notice of Default identical to a proposed Notice of
Default which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional proposed Notice
of Default with respect to any new or different fact or circumstance permitting
the giving of a proposed Notice of Default with respect to Securities of such
series, in either of which events a new record date shall be established
pursuant to the provisions of this Section 501. Any such proposed Notice of
Default shall be considered a Notice of Default hereunder at such time, if any,
that Holders of at least 25% in principal amount of the Outstanding Securities
shall have joined in such proposed Notice of Default by giving timely notice to
the Trustee hereunder.
Section 502 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series (other than
an Event of Default specified in Section 501(6) or (7) at the time Outstanding
occurs and is continuing, then in every such case, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of all of
the Securities of that series 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 amount (or specified amount) shall become
immediately due and payable. Upon payment of said amounts, all
29
obligations of the Company in respect of payment of principal of the Securities
of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series 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 of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such 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
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
30
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, or (ii) during any such 90-
day period, an additional written notice of declaration of acceleration with
respect to Securities of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with respect to any
other Event of Default with respect to Securities of such series, in either of
which events a new record date shall be established pursuant to the provisions
of this Section 502.
Section 503 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
(3) default is made in the making or satisfaction of any mandatory
sinking fund payment when it becomes due pursuant to the terms of the
securities of any series,
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 premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may, but shall not
be obligated to, institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series 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.
31
Section 504 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 file and prove a claim for the
whole amount of principal, premium and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary or
advisable in order to have claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements, and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceeding,
and 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 607.
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 505 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, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article of any series
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities of any
series 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
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of such
series in respect of which or for the benefit of which such money has been
collected, ratably, without preference or
32
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Company or to whomsoever may be
lawfully entitled to receive the same as a court of competent jurisdiction
may direct.
Section 507 Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such 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 of
such Holders, or of the Holders of Outstanding Securities of any other series,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 508 Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium 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 premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or repayment at the option of the
Holder, on the Redemption Date or the Repayment Date, as the case may be) and
(if the terms of such Security so provide) to have such Security converted into
Common Stock pursuant to Article Fourteen and to institute suit for the
enforcement of any such payment or conversion, and such rights shall not be
impaired without the consent of such Holder.
33
Section 509 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 510 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
306, 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 511 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities 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 512 Control by Holders.
------------------
The Holders of at least a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of a series all or part of which is represented by a Global Security,
a record date shall be established for determining Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be determined in accordance with Section 104(e). The Holders on such
34
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least a majority in
principal amount of the outstanding Securities of such series, or their proxies,
shall have been joined in such direction prior to the day which is 90 days after
such record date, such direction shall automatically and without further action
by any Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
expiration of such 90-day period, a new direction identical to a direction which
has been canceled pursuant to the provisions to the preceding sentence or (ii)
during any such 90-day period a new direction contrary to or different from such
direction, in either of which events a new record date shall be established
pursuant to the provisions of this Section 512.
Section 513 Waiver of Defaults.
------------------
By Act delivered to the Company and the Trustee, the Holders of not less
than a majority in principal amount of the Outstanding Securities of any
affected series may on behalf of the Holders of all the Securities of such
series waive any existing Event of Default hereunder with respect to such series
and its consequences (including an acceleration and its consequences, including
any related payment default that resulted from such acceleration), except an
Event of Default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any mandatory
sinking fund installment with respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
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 514 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to
35
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Trustee, by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Security on or after
the Stated Maturity expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date or
Repayment Date, as the case may be, and (if the terms of such Security so
provide) to have such Security converted into Common Stock pursuant to Article
Fourteen).
Section 515 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 SIX
THE TRUSTEE
Section 601 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision of
this Indenture are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
36
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) 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.
(d) 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 602 Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with respect
to Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal, premium or interest on
any Security of such series or in the payment of any mandatory sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee of the board of directors and/or Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to the Securities of such series no such notice to Holders
shall be given until at least 60 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 603 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(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,
37
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors 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, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(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; and
(h) the Trustee shall not be required to take notice or be deemed to have
notice of any default hereunder (except failure by the Company to pay principal
of or interest on any series of Securities so long as the Trustee is also acting
as Paying Agent for such series of Securities) unless the Trustee shall be
specifically notified in writing of such default by the Company by the Holders
of at least a 10% in aggregate principal amount of all Outstanding Securities,
and all such notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be delivered at the
principal Corporate Trust Office of the Trustee, and in the absence of such
notice the Trustee may conclusively assume there is no default except as
aforesaid.
38
Section 604 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
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 or any Authenticating Agent 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 or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof. The Trustee shall not be deemed
to have knowledge of the identity of any Subsidiary unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the Company or any
Holder.
Section 605 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, 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
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606 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 with the Company.
Section 607 Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for the Trustee's services rendered hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
Trustee's part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the Trustee's
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of the Trustee's powers
or duties hereunder.
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As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
Section 608 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310 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.
To the extent permitted by the Trust Indenture Act, the Trustee shall not be
deemed to have a conflicting interest with respect to the Securities of any
series by virtue of being Trustee with respect to the Securities of any
particular series of Securities except as may be otherwise provided by the terms
of the Securities of that series.
Section 609 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 Federal, State, Territorial or District of Columbia 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 610 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 in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 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 with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608 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
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any or all Securities, or (ii) subject to Section 514,
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 with respect to any or
all Securities and the appointment of a successor Trustee or Trustees with
respect to such series.
(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, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of that or those series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
of appointment shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
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Section 611 Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed 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 the 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, subject nevertheless to its
lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each 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 with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) 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 referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) 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.
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Section 612 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.
In case any Securities shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such Debt
Securities, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
Section 613 Preferential Collection of Claims Against Company.
-------------------------------------------------
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 Section 311 of the Trust Indenture Act regarding the collection of
such claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
Section 614 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities (which may be an Affiliate of the Company)
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon registration of transfer or partial redemption or
repayment thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business and in good standing under the
laws of the United States of America, any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
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 Authenticating Agent
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 an Authenticating Agent
shall cease to be eligible in accordance with
43
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent. An Authenticating
Agent for any series of Securities may resign at any time by giving written
notice thereof to the Trustee for such series and to the Company. The Trustee
for any series of Securities may at any time terminate the agency of an
Authenticating Agent for such series by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee of such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment thereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request of
the Company, the Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, pursuant to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series described therein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
__________________________,
as Trustee
By: _______________________
As Authenticating Agent
By: _______________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating to that
series, on June 30 and December 31), a list, in such form as such Trustee may
reasonably require, of the names and addresses of the Holders of that series as
of such 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; provided, however, that if and so long as the Trustee is Security
Registrar with respect to Securities of a particular series no such list shall
be required with respect to the Securities of such series.
Section 702 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 701 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 701 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 privileges 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 the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 703 Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the year 1999,
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 if and to the extent and in the manner provided pursuant thereto.
(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 any
Securities are listed, with the
45
Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 704 Reports by Company.
------------------
(a) 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 Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission. Delivery of such reports to the
Trustee is for informational purposes only and the Trustee's receipt of such
reports shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) Commencing one year from the date hereof, the Company shall furnish to
the Trustee annually the notice required by Section 1009 hereof (if required)
and a statement as to the performance by the Company of its obligations
hereunder and as to any Event of Default.
Section 705 Holders' Meetings.
-----------------
(a) A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Section 705 for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or supplemental
indentures hereto pursuant to the provisions of Section 902;
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Outstanding
Securities of any one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
(b) The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in paragraph (a) of this Section 705,
to be held at such time or times and at such place or places as the Trustee for
such series shall determine. Notice of every meeting of the Holders of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given to Holders
of such
46
series in the manner and to the extent provided in Section 105. Such notice
shall be given not less than 20 days nor more than 90 days prior to the date
fixed for the meeting.
(c) In case at any time the company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized by giving notice thereof as provided in the preceding paragraph.
(d) to be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Security of the series with respect to which such meeting is being
held or (b) a Person appointed by an instrument in writing as agent or proxy by
such Holder. The only Persons who shall be entitled to be present or to speak
at any meeting of Holders shall be the Persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee for the series with
respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
(e) Notwithstanding any other provisions of this Indenture, the Trustee for
any series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in paragraph (c) of this
Section 705, in which case the Company or the Holders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each Holder of a Debt Security of the series with respect to which such meeting
is being held or proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as contemplated by
Section 301) of Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Outstanding Securities of such series held by him or
instruments in writing duly designating him as the person to vote on behalf of
Holders of Debt Securities of such series. Any meeting of Holders with respect
to which a meeting was duly called pursuant to the provisions of paragraph (b)
or (c) of this Section 705 may be adjourned from time to time by a majority of
such Holders present and the meeting may be held as so adjourned without further
notice.
47
(f) Voting. The vote upon any resolution submitted to any meeting of
Holders with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Securities held
or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was transmitted as provided in paragraph (b) of this Section 705. The
record shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
(g) Nothing contained in this Section 705 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Securities of any series.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge with or into any other
Person or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its property or assets to any Person unless:
(1) in case the Company shall consolidate with or merge into another
Person or sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its property or assets 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 shall be either the Company or a
corporation, 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, all obligations hereunder, including the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
48
(2) immediately prior to and after giving effect to such transaction,
and treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary 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;
(3) if, as a result of any such consolidation or merger or such sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of its property or assets, the property or assets of the
Company could become subject to a Lien which would not be permitted by this
Indenture, the Company or such successor Person, as the case may be, shall
prior to or contemporaneously with such consolidation, merger, conveyance
transfer or lease, take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, transfer, lease, conveyance or other disposition and, if
a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
Notwithstanding the foregoing, any Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company.
Section 802 Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the property or assets of the Company
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of its property or assets 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. In the case of a lease, the predecessor Person
shall not be released from its obligations to pay the principal of, premium, if
any, and interest on the Securities. All Securities issued by the successor
Person shall in all respects have the same legal priority as the Securities
theretofore or thereafter authenticated, issued and delivered in accordance with
the terms of this Indenture.
49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 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 amend the
Securities of a series or enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to Sections 801 or 1008 or
otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
50
(9) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(10) to effectuate the provisions of Section 1405(b); or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge and covenant defeasance with respect to any series of Securities
pursuant to Sections 1502 or 1503; provided, however, that any such action
shall not adversely affect the interests of the Holders of Securities of
such series or any other series of Securities in any material respect; or
(12) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act or to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act; or
(13) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (13) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect;
(14) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities
shall be payable, (2) all or any series of Securities may be surrendered
for registration or transfer, (3) all or any series of Securities may be
surrendered for exchange, and 4) notices and demands to or upon the Company
in respect of all or any series of Securities and this Indenture may be
served; or
(15) to waive a default in the payment of the principal of, or
interest on, any Security, except as otherwise provided herein.
Section 902 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 of each series affected by such
supplemental indenture, 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 of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of, premium, if any, or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, the payment of any mandatory sinking
fund or analogous obligation, change the
51
method of determination of interest thereon, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or adversely affect any right of repayment at the option of
the Holder of any Security, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable or impair the right of any Holders of Securities of a
Series entitled to the conversion rights set forth in Article Fourteen to
receive securities upon the exercise of such conversion rights, or impair
the right to institute suit for the enforcement of any such payment or
delivery of Common Stock or Preferred Stock for Securities converted
pursuant to Article Fourteen on or after the Stated Maturity thereof (or,
in the case of redemption or repayment at the option of the Holder, on or
after the Redemption Date or Repayment Date, as the case may be, or in the
case of such conversion, on or after the date of conversion), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) make any change in the provisions concerning waivers of Events of
Default by Holders or the rights of Holders to recover the principal of,
premium, if any, or interest on, any Security or waive an Event of Default
in the payment of the principal of, or interest on, any Security, except as
otherwise provided for herein, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1010, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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 903 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
52
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, 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 904 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 905 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series 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 of any series 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 of such series.
Section 907 Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the appropriate Trustee of
any supplemental indenture, the Company shall transmit, as provided herein, to
all Holders of any series of the Debt Securities affected thereby, a notice
setting forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
53
Section 1002 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, conversion 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 will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company terminates the appointment of a Paying Agent
or Security Registrar or conversion agent or otherwise shall fail to maintain
any such required office or agency, the Company shall use its reasonable best
efforts to appoint a successor Paying Agent or Security Registrar or conversion
agent reasonably acceptable to the Trustee. If the Company fails to maintain a
Paying Agent or Security Registrar or conversion agent, the Trustee will act as
such, 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 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 each Place of
Payment for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 1003 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in writing
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
54
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or 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 (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) 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 an Authorized Newspaper in
the Borough of Manhattan, 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 will be repaid to the Company.
Section 1004 Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if in the
judgment of the Company it shall be necessary, advisable or in the interest of
the Company to discontinue the same.
Section 1005 Statement by Officers as to Default.
-----------------------------------
Pursuant to Section 314(a) of the Trust Indenture Act, 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, a certificate signed by the principal
executive, financial or accounting officer of the Company, stating whether or
not to the best knowledge of the signer thereof the Company is in default in the
performance and observance of any of the terms, provisions, covenants and
55
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided, hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 1006 Payment of Taxes.
----------------
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary.
Section 1007 Limitation on Liens.
-------------------
With respect to any series of Securities, the Company will not, and will
not permit any of its Subsidiaries to, create, incur, issue, assume or guarantee
any Debt of the Company or any of its Subsidiaries secured by a Lien (other than
Permitted Liens) upon any Property, or upon shares of Capital Stock or evidence
of Debt issued by any of the Company's Subsidiaries and owned by the Company or
by any other Subsidiary of the Company, owned by the Company on the date of
issuance of such series of Securities, without making effective provision to
secure all of the Securities issued hereunder, equally and ratably with any and
all other Debt thereby secured, so long as such Debt shall be so secured.
Section 1008 Calculation of Original Issue Discount.
--------------------------------------
If any Original Issue Discount Securities are issued hereunder, the Company
shall file with the Trustee promptly following the end of each calendar year a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on each series of outstanding Original Issue
Discount Securities as of the end of such year.
Section 1009 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 801(3) and in Section 1004 and
Sections 1006 to 1008, inclusive, with respect to the Securities of any series
if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
56
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated in Section 301 for Securities of any series) in
accordance with this Article.
Section 1102 Optional Redemption.
-------------------
Unless otherwise specified in connection with the issuance of any series of
Securities, the Securities will be redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of such Securities or (ii) as determined by an
Independent Investment Banker, the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the
redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
interest thereon to the date of redemption.
Section 1103 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1104 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, in a manner
which the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If the
Company shall so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary shall not be
included in the Securities selected for redemption.
57
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 Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1105 Notice of Redemption.
--------------------
Notice of redemption shall, unless otherwise specified by the terms of the
Securities to be redeemed, be given not less than 30 nor more than 60 days prior
to the Redemption Date, to each Holder of Securities to be redeemed, in
accordance with Section 106.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Securities of such series or a supplemental indenture establishing such
series, if such be the case, together with a brief statement of facts
permitting such redemption,
(4) if less than all the Outstanding Securities of any series are to
be redeemed (unless all the Securities of such series of a specified tenor
are to be redeemed), the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, which shall be the office or agency of
the Company in each Place of Payment, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
58
Section 1106 Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
Section 1107 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1108 Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Global Security is so surrendered, such new
Security so issued shall be a new Global Security.
ARTICLE TWELVE
SINKING FUNDS
Section 1201 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
59
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
Section 1202 Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Securities.
- ----------
The Company (1) may deliver Outstanding Securities of a series to the
Trustee for cancellation (other than any previously called for redemption) and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company or the Holder, if applicable, pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series or may
apply Securities of such series which have been previously cancelled or
converted; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of such mandatory sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
Section 1203 Redemption of Securities for Mandatory Sinking Fund.
---------------------------------------------------
Not less than 60 days prior to each mandatory sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
or applying previously cancelled Securities of that series pursuant to Section
1202 and the basis for such credit and will also deliver to the Trustee any
Securities to be so delivered which have not theretofore been delivered to the
Trustee. Not less than 30 days before each such mandatory sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such mandatory
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
60
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 1301 Applicability of Article.
------------------------
Securities of any series that are repayable before their Stated Maturity at
the option of the Holders shall be repaid in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
Section 1302 Notice of Repayment Date.
------------------------
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repayment Date, to the Trustee and to each Holder of Securities of such series
in accordance with Sections 105 and 106, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repayment Price, which shall be the office or agency of
the Company in each Place of Payment, and the date by which Securities must
be so surrendered in order to be repaid;
(4) a description of the procedure which a Holder must follow to
exercise a repayment right; and
(5) that exercise of the option to elect repayment is irrevocable.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 1303 Deposit of Repayment Price.
--------------------------
On or prior to any Repayment Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Repayment Price of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities of
such series which are to be repaid on that date.
61
Section 1304 Securities Payable on Repayment Date.
------------------------------------
The form of option to elect repayment having been delivered as specified in
the form of Security for such series as provided in Section 201, the Securities
so to be repaid shall, on the Repayment Date, become due and payable at the
Repayment Price applicable thereto, and from and after such date (unless the
Company shall default in the payment of the Repayment Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for repayment in accordance with said notice, such Security shall
be paid by the Company at the Repayment Price, together with accrued interest to
the Repayment Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to such Repayment Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Date according to their terms and the
provisions of Section 307.
If any Security to be repaid shall not be so paid upon surrender thereof
for repayment, the principal shall, until paid, bear interest from the Repayment
Date at the rate prescribed in the Security.
Section 1305 Securities Repaid in Part.
-------------------------
Any Security which by its terms may be repaid in part at the option of the
Holder and which is to be repaid only in part shall be surrendered at any office
or agency of the Company designated for that purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so
issued shall be a new Global Security.
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
Section 1401 General.
-------
If so provided in the terms of the Securities of any series established in
accordance with Section 301, the principal amount of the Securities of such
series shall be convertible into shares of Common Stock in accordance with this
Article Fourteen and the terms of such series of Securities if such terms differ
from this Article Fourteen; provided, however, that if any of the terms by which
any such Security shall be convertible into Common Stock are set forth in a
supplemental indenture entered into with respect thereto pursuant to Section
901(9) hereof, the terms of such supplemental indenture shall govern.
62
Section 1402 Right to Convert.
----------------
Subject to and upon compliance with the provisions of this Article, the
Holder of any Security that is convertible into Common Stock shall have the
right, at such Holder's option, at any time on or after the date of original
issue of such Security or such other date specified in the applicable Board
Resolution delivered pursuant to Section 301 and prior to the close of business
on the date set forth in such Board Resolution (or if such Security is called
for redemption, then in respect of such Security to and including but not after
the close of business on the date of redemption unless the Company shall default
in the payment due on such date) to convert the principal amount of any such
Security of any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination for Securities
of the applicable series, any portion of such principal which is an authorized
denomination or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock obtained by dividing the principal amount
of such Security or portion thereof surrendered for conversion by the Conversion
Price therefor by surrender of the Security so to be converted in whole or in
part in the manner provided in Section 1403. Such conversion shall be effected
by the Company in accordance with the provisions of this Article and the terms
of the Securities, if such terms differ from this Article.
Section 1403 Manner of Exercise of Conversion Privilege; Delivery of
-------------------------------------------------------
Common Stock; No Adjustment for Interest or Dividends.
- -----------------------------------------------------
In order to effect a conversion, the holder of any Security to be
converted, in whole or in part, shall surrender such Security at the office or
agency maintained by the Company for such purpose, as provided in Section 1002
and shall give written notice of conversion to the Company at such office or
agency that the Holder elects to convert such Security or the portion thereof
specified in said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the certificate or
certificates for shares of Common Stock which shall be deliverable on such
conversion shall be registered, and shall be accompanied by payments in respect
of transfer taxes, if required pursuant to Section 1406. Each Security
surrendered for conversion shall, unless the shares of Common Stock deliverable
on conversion are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of transfer, in
form satisfactory to the Company, duly executed by the Holder or such Holder's
duly authorized attorney, and by any payment required pursuant to this Section
1403. As promptly as practicable after the surrender of such Security and
notice, as aforesaid, the Company shall deliver or cause to be delivered at such
office or agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares of Common Stock
deliverable upon the conversion of such Security or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion as provided in Section 1404. In case any Security of a denomination
greater than the minimum denomination for Securities of the applicable series
shall be surrendered for partial conversion, the Company shall execute and
register and the Trustee shall authenticate and deliver to or upon the written
order of the Company and the Holder of the Security so surrendered, without
charge to such Holder, a new Security or Securities of the same series in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Security. Each conversion shall be deemed
to have been effected as of the date on which such Security shall
63
have been surrendered (accompanied by the funds, if any, required by the last
paragraph of this Section) and such notice received by the Company, as
aforesaid, and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be registrable upon such
conversion shall become on said date the Holder of record of the shares
represented thereby, provided, however, that any such surrender on any date when
the stock transfer books of the Company shall be closed shall constitute the
person in whose name the certificates are to be registered as the record holder
thereof for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in effect
on the date upon which such Security shall have been so surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the Regular Record Date for any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(unless such Security or portion thereof being converted shall have been called
for redemption or submitted for repayment on a date during such period) be
accompanied by payment, in legal tender or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the applicable series of Securities. An
amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Security converted or for dividends on
any shares issued upon the conversion of such Security as provided in this
Article.
Section 1404 Cash Payments in Lieu of Fractional Shares.
------------------------------------------
No fractional shares of Common Stock or scrip representing fractional
shares of Common Stock shall be delivered upon conversion of Securities. If
more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares of Common Stock which shall be
deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. Instead of any fraction of a share of Common
Stock which would otherwise be deliverable upon the conversion of any Security,
the Company shall pay to the Holder of such Security an amount in cash (computed
to the nearest cent, with one-half cent being rounded upward) equal to the same
fraction of the closing price (determined in the manner provided in Section
1405(a)(v)) of the Common Stock on the Trading Day (as defined in Section
1405(a)(v)) next preceding the date of conversion.
Section 1405 Conversion Price Adjustments; Effect of Reclassification,
---------------------------------------------------------
Mergers, Consolidations and Sales of Assets.
- -------------------------------------------
(a) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the Company shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y)
subdivide the outstanding
64
Common Stock into a greater number of shares or (z) combine the
outstanding Common Stock into a smaller number of shares, the
Conversion Price shall be adjusted so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock of the Company which such holder
would have owned or have been entitled to receive after the happening
of any of the events described above had such Security been converted
immediately prior to the record date in the case of a dividend or the
effective date in the case of subdivision or combination. An
adjustment made pursuant to this subparagraph (i) shall become
effective immediately after the record date in the case of a dividend,
except as provided in subparagraph (vii) below, and shall become
effective immediately after the effective date in the case of a
subdivision or combination.
(ii) In case the Company shall issue rights or warrants to all
holders of shares of Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share of Common Stock (as
defined for purposes of this subparagraph (ii) in subparagraph (v)
below), the Conversion Price in effect after the record date for the
determination of stockholders entitled to receive such rights or
warrants shall be determined by multiplying the Conversion Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares of Common
Stock which the aggregate offering price of the total number of shares
of Common Stock so offered would purchase at such current market
price, and the denominator of which shall be the number of shares of
Common Stock outstanding on the record date for issuance of such
rights or warrants plus the number of additional shares of Common
Stock receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights or
warrants are issued, and shall become effective immediately, except as
provided in subparagraph (vii) below, after such record date.
(iii) In case the Company shall distribute to all holders of
Common Stock any shares of capital stock of the Company (other than
Common Stock) or evidences of its indebtedness or assets (excluding
cash dividends or distributions paid from retained earnings of the
Company or dividends payable in Common Stock) or rights or warrants to
subscribe for or purchase any of its securities (excluding those
rights or warrants referred to in subparagraph (ii) above) (any of the
foregoing being hereinafter in this subparagraph (iii) called the
"Assets"), then, in each such case, the Conversion Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
record date for determination of stockholders entitled to receive such
distribution by a fraction the numerator of which shall be the current
market price per share (as defined for purposes of this subparagraph
(iii) in subparagraph (v) below) of the Common Stock at such record
date for determination of stockholders entitled to receive such
distribution less the then fair market value (as determined by the
Board of Directors, whose determination
65
shall be conclusive) of the portion of the Assets so distributed
applicable to one share of Common Stock, and the denominator of which
shall be the current market price per share (as defined in
subparagraph (v) below) of the Common Stock at such record date. Such
adjustment shall become effective immediately, except as provided in
subparagraph (vii) below, after the record date for the determination
of stockholders entitled to receive such distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above, the number
of shares of Common Stock into which a Security is convertible shall
have been adjusted because the Company has declared a dividend, or
made a distribution, on the outstanding shares of Common Stock in the
form of any right or warrant to purchase securities of the Company, or
the Company has issued any such right or warrant, then, upon the
expiration of any such unexercised right or unexercised warrant, the
Conversion Price shall forthwith be adjusted to equal the Conversion
Price that would have applied had such right or warrant never been
declared, distributed or issued.
(v) For the purpose of any computation under subparagraphs (ii) or
(iii) above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily closing prices of
the Common Stock for the shorter of (i) 30 consecutive Trading Days
ending on the last full Trading Day on the exchange or market
specified in the second following sentence prior to the Time of
Determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of such
rights or warrants or such distribution through such last full Trading
Day prior to the Time of Determination. The term "Time of
Determination" as used herein shall be the time and date of the
earlier of (x) the determination of stockholders entitled to
receive such rights, warrants, or distributions or (y) the
commencement of "ex-dividend" trading in the Common Stock on the
exchange or market specified in the following sentence. The closing
price for each day shall be the reported last sales price, regular
way, or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if the
Common Stock is not listed or admitted to trading on the New York
Stock Exchange at such time, on the principal national securities
exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market ("NNM") or, if the Common
Stock is not quoted on the average of the closing bid and asked prices
on such day in the over-the-counter market as reported by NNM or, if
bid and asked prices for the Common Stock on each such day shall not
have been reported through NNM, the average of the bid and asked
prices for such date as furnished by any New York Stock Exchange
member firm regularly making a market in the Common Stock selected for
such purpose by the Company or, if no such quotations are available,
the fair market value of the Common Stock as determined by a New York
Stock Exchange member firm regularly making a market in the Common
Stock selected for such purpose by the Company. As used herein, the
term "Trading Day" with respect to Common Stock means (x) if the
Common Stock is
66
listed or admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New York
Stock Exchange or such other national securities exchange, as the case
may be, is open for business or (y) if the Common Stock is quoted on
NNM, a day on which trades may be made on NNM or (z) otherwise, any
day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by
law or executive order to close.
(vi) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this subparagraph (vi) are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 1405(a) shall be made
to the nearest cent or to the nearest .01 of a share, as the case may
be, with one-half cent and .005 of a share, respectively, being
rounded upward. Anything in this Section 1405(a) to the contrary
notwithstanding, the Company shall be entitled to make such reductions
in the Conversion Price, in addition to those required by this Section
1405(a), as it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision of shares, distribution of
rights or warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the Company
to its stockholders shall not be taxable.
(vii) In any case in which this Section 1405(a) provides that an
adjustment shall become effective immediately after a record date for
an event, the Company may defer until the occurrence of such event (x)
issuing to the holder of any Security converted after such record date
and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (y) paying
to such holder any amount of cash in lieu of any fractional share of
Common Stock pursuant to Section 1404.
(viii) Whenever the Conversion Price is adjusted as herein
provided, the Company shall file with the Trustee an Officers'
Certificate, setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment; provided, however, that the failure of
the Company to file such Officers' Certificate shall not affect the
legality or validity of any corporate action by the Company.
(ix) Whenever the Conversion Price for any series of Securities
is adjusted as provided in this Section 1405(a), the Company shall
cause to be mailed to each holder of Securities of such series at its
then registered address by first-class mail, postage prepaid, a notice
of such adjustment of the Conversion Price setting forth such adjusted
Conversion Price and the effective date of such adjusted Conversion
Price; provided, however, that the failure of the Company to give
67
such notice shall not affect the legality or validity of any corporate
action by the Company.
(b) (i) Notwithstanding any other provision herein to the contrary, if any
of the following events occur, namely (x) any reclassification or change of
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (y) any consolidation, merger
or combination of the Company with or into another corporation as a result of
which holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (z) any sale or conveyance of all or substantially all of
the assets of the Company to any other entity as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock,
then appropriate provision shall be made by supplemental indenture so that (A)
the holder of any outstanding Security that is convertible into Common Stock
shall have the right to convert such Security into the kind and amount of the
shares of stock and securities or other property or assets (including cash) that
would have been receivable upon such reclassification, change, consolidation,
merger, combination, sale, or conveyance by a holder of the number of shares of
Common Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
and (B) the number of shares of any such other stock or securities into which
such Security shall thereafter be convertible shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the terms of adjustment provided for in this Section, and Sections 1402,
1403, 1404, 1406, 1407, 1408 and 1409 shall apply on like terms to any such
other stock or securities.
(ii) In case of any reclassification or change of the Common Stock
(other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or
from no par value to par value), or of any consolidation, merger or
combination of the Company with or into another corporation or of the
sale or conveyance of all or substantially all of the assets of the
Company, the Company shall cause to be filed with the Trustee and to
be mailed to each holder of Securities that are convertible into
shares of Common Stock at such holder's registered address, the date
on which such reclassification, change, consolidation, merger,
combination, sale or conveyance is expected to become effective, and
the date as of which it is expected that holders of Common Stock shall
be entitled to exchange their Common Stock for stock, securities or
other property deliverable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance.
Section 1406 Taxes on Shares Issued.
----------------------
The delivery of stock certificates upon conversions of Securities shall be
made without charge to the holder converting a Security for any tax in respect
of the issue thereof. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the delivery of
stock registered in any name other than of the holder of any Security converted,
and the Company shall not be required to deliver any such stock certificate
68
unless and until the person or persons requesting the delivery thereof shall
have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 1407 Shares to be Fully Paid; Compliance with Governmental
-----------------------------------------------------
Requirements; Listing of Common Stock.
- -------------------------------------
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities of any series which are convertible into
Common Stock will upon delivery be fully paid and nonassessable by the Company
and free from all taxes, liens and charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided for
the purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any Federal or state law before
such shares may be validly delivered upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that it will, if permitted by the rules of
the New York Stock Exchange or such other national stock exchange on which the
Common Stock is listed or admitted to trading or if permitted by the rules of
NNM if the Common Stock is approved by it for listing or quotation, list and
keep listed for so long as the Common Stock shall be so listed on such exchange,
upon official notice of issuance, all Common Stock deliverable upon conversion
of Securities of any series which are convertible into Common Stock.
Section 1408 Responsibility of Trustee.
-------------------------
Neither the Trustee nor any conversion agent shall at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price applicable
to such Securities, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be delivered upon the
conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to deliver
any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion or for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article Fourteen.
Section 1409 Covenant to Reserve Shares.
--------------------------
The Company covenants that it will at all times reserve and keep available,
free from pre-emptive rights, out of its authorized but unissued Common Stock,
such number of shares of Common Stock as shall then be deliverable upon the
conversion of all Outstanding Securities of any series of Securities which are
convertible into Common Stock.
69
Section 1410 Other Conversions.
-----------------
If so provided in a Board Resolution with respect to the Securities of a
series, the principal amount of the Securities of such series shall be
convertible into or exchangeable for a principal amount of other securities of
the Company (which other securities may be issued under this Indenture or
otherwise), and the issuance of such securities upon any such conversion or
exchange shall be made in accordance with the terms of such Board Resolution.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501 Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance.
- ---------------------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1502 or (b) covenant
defeasance of the Securities of a series under Section 1503, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Fifteen, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 1502
(if applicable) or Section 1503 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Fifteen.
Section 1502 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this Section
with respect to the Outstanding Securities of a particular series, the Company
shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series (except for certain obligations to
register the transfer or exchange of Securities of such series, to replace
stolen, lost or mutilated Securities of such series, and to maintain paying
agencies) on and after the date the conditions precedent set forth below are
satisfied (hereinafter, "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 of such series 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 and upon Company Request, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 1504 as more fully set forth in such Section,
payments of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company's obligations with respect to such
Securities under Section 304, 305, 306, 607, 1002 and 1003 and such obligations
as shall be ancillary thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee hereunder and (D) this
Article Fifteen. Subject to compliance with this Article Fifteen, the Company
may exercise its option under this Section 1502 notwithstanding the prior
exercise of its option under Section 1503 with respect to the Securities of such
series.
70
Section 1503 Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this Section
with respect to the Outstanding Securities of a particular series, the Company
shall be released from its obligations under Sections 801, 1004, 1006, 1007 and
1008 (and any other covenant applicable to such Securities that is determined
pursuant to Section 301 to be subject to covenant defeasance under this Section)
and the occurrence of an event specified in Clause (4) of Section 501 with
respect to any of Sections 801, 1004, 1006, 1007 or 1008 (and any other Event of
Default applicable to such Securities that is determined pursuant to Section 301
to be subject to covenant defeasance under this Section) shall not be deemed to
be an Event of Default with respect to the Outstanding Securities of such series
on and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities of such series, the Company may omit
to comply with and shall have no liability in respect of any term, condition,
limitation or restrictive covenant set forth in any such Section or Clause
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or Clause or by reason of any reference in any such Section or
Clause to any other provision herein or in any other document, including any
supplement hereto, any Board Resolution or Officers' Certificate delivered
hereto but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1504 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent to application of either
Section 1502 or Section 1503 to the Outstanding Securities of a particular
series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Fifteen 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 benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereto delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of and any premium, if any, and interest on the
Outstanding Securities of such series on the maturity of such principal,
premium or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such series
on the day on which such payments are due in accordance with the terms of
this Indenture and of such Securities. Before such a deposit, the Company
may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article Eleven,
which shall be given effect in applying the foregoing. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and
71
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and
shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific payment
of principal of or interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such depositary receipt,
provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depositary
receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of such
deposit (it being understood that the condition in this condition shall not
be deemed satisfied until the expiration of such period). (3) Such
defeasance or covenant defeasance shall not (A) cause the Trustee for the
Securities of such series to have a conflicting interest as defined in
Section 608 or for purposes of the Trust Indenture Act with respect to any
securities of the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended.
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(4) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
United States federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(5) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and
72
at the same times as would have been the case if such deposit and covenant
defeasance had not occurred.
(6) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1502
or the covenant defeasance under Section 1503 (as the case may be) have
been complied with.
Section 1505 Deposited Money and U.S. Government Obligations to be
-----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions.
- ---------------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee - collectively, for purposes for this
Section 1505, the "Trustee") pursuant to Section 1504 in respect of the
Outstanding Securities of such series 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 Paying Agent (but not
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, premium and interest, but such money 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 money or U.S. Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
Anything herein 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 1504 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1506 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1502 or 1503 with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 1502 or 1053; provided,
however, that if the Company makes any payment of the principal of or any
premium or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
73
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1601 Immunity of Incorporators, Stockholders, Officers and
-----------------------------------------------------
Directors.
- ---------
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
* * *
74
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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
AUTOZONE, INC.
By: /s/ Robert J. Hunt
---------------------------------
Name: Robert J. Hunt
Title: Executive Vice President
Attest: /s/ Harry L. Goldsmith
-----------------------
Name: Harry L. Goldsmith
Title: Senior Vice President,
Secretary and General Counsel
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Steven M. Wagner
_________________________________
Name: Steven M. Wagner
Title: First Vice President
Attest: /s/ Mark J. Frye
_________________________
Name: Mark J. Frye
Title: Assistant Vice President
75
THIS DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
DEBENTURES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITORY TRUST COMPANY (THE "SECURITIES DEPOSITORY") TO A
NOMINEE OF THE SECURITIES DEPOSITORY OR BY THE SECURITIES DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
SECURITIES DEPOSITORY, 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE SECURITIES DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE SECURITIES
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
No. 00001
CUSIP 053332AA0 $200,000,000
AUTOZONE, INC.
6 1/2% Debenture due July 15, 2008
Original Issue Date: July 22, 1998
Interest Payment Dates: January 15 and July 15
Maturity Date: July 15, 2008
Interest Rate: 6 1/2%
AUTOZONE, INC., a Nevada corporation (hereinafter called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of TWO HUNDRED MILLION DOLLARS (the
"Principal Amount") on the Maturity Date shown above, except as provided below,
and to pay interest thereon at the rate per annum shown above. The Company will
pay interest semiannually on the Interest Payment Dates, commencing with January
15, 1999. Interest on this Debenture will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the Original
Issue Date shown above. 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 Debenture (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 January 1 or the July
1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder on such Regular
Record Date, and may be paid to the Person in whose name this Debenture (or one
or more Predecessor Securities) is registered on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Company, or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange upon which the Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in such
Indenture.
In the event this Global Debenture is surrendered in exchange for
Debentures in definitive form, principal and interest payable with respect to
Debentures in definitive form will be payable at the office or agency of the
Company maintained for that purpose in New York, New York (the Place of
Payment), 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 payment of interest payable with respect to such
Debentures in definitive form, may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Security Register.
This Debenture is one of a duly authorized issue of securities of the
Company (herein referred to as the "Securities") evidencing its unsecured
indebtedness, of the series hereinafter specified, all issued under and pursuant
to a senior indenture, dated as of July 22, 1998, (herein referred to as the
"Indenture"), duly executed and delivered by the Company and The First National
Bank of Chicago, as Trustee (hereinafter called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and Holders of the Securities.
The Securities may be issued in one or more series, which different series may
be issued in various aggregate principal amounts, may mature at different times,
may bear interest, if any, at different rates, may be subject to different
redemption provisions, if any, may be subject to different sinking, purchase or
analogous funds, if any, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided. This Debenture is
one of a series designated as the 6 1/2% Debentures due July 15, 2008 of the
Company (herein referred to as the "Debentures"), limited except as provided in
the Indenture to the aggregate principal amount of Two Hundred Million Dollars
($200,000,000).
The Debentures will be redeemable, in whole or in part, at the option of
the Company at any time at a redemption price equal to the greater of (i) 100%
of the principal amount of such Debentures or (ii) as determined by an
Independent Investment Banker, the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the
redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
interest thereon to the date of redemption.
2
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity 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 such redemption date, plus .20%.
"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 Debentures to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debentures of comparable maturity to the
remaining term of such Debentures.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation and
Lehman Brothers Inc. and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
"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
(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. on the
third Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of the Debentures to be
redeemed.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Debentures or
portions thereof called for redemption.
3
In case an Event of Default, as defined in the Indenture, with respect to
the Debentures shall have occurred and be continuing, the principal hereof may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture provides that in certain events such declaration and its
consequences may be waived by the Holders of a majority in aggregate principal
amount of the Debentures then Outstanding. Any such waiver by the Holder of
this Debenture (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and owners of this
Debenture and of any Debenture issued upon the transfer hereof or in exchange or
substitution herefor, irrespective of whether or not any notation of such waiver
is made upon this Debenture or such other Debentures.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of all Outstanding Securities or, in certain cases, of the
Outstanding Securities of each series to be affected, evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each such series; provided, however, that no such
supplemental indenture shall (i) change the Stated Maturity of the principal of,
or any installment of principal or interest on, any Security, or reduce the
principal amount thereof or the rate of interest, if any, thereon, or any
premium payable upon the redemption thereof, or change the coin or currency in
which any Security or the 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 Repayment Date, as the case may be) or (ii) reduce the percentage in
principal amount of the Outstanding Securities or the Outstanding Securities of
any particular series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of the Indenture or certain
defaults thereunder or their consequences provided for in the Indenture. It is
also provided in the Indenture that prior to the acceleration of maturity of the
Securities of any particular series upon the occurrence of an Event of Default
with respect to such series as permitted by the Indenture, the Holders of a
majority in aggregate principal amount of the Securities of such series at the
time Outstanding may on behalf of the Holders of all of the Securities of such
series waive any past default under the Indenture with respect to Securities of
such series and its consequences, except a default in the payment of the
principal of or premium, if any, or interest, if any, on any of the Securities
of such series. Any such consent or waiver by the Holder of this Debenture
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Debenture and of
any Debenture issued upon transfer hereof or in exchange or substitution
herefor, irrespective of whether or not any notation of such consent or waiver
is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and
4
unconditional, to pay the principal of and interest on this Debenture at the
time, place and rate, and in the coin or currency, herein and in the Indenture
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Debenture is registrable by the Holder hereof on the
Security Register of the Company, upon due presentment of this Debenture for
registration of transfer at the office of the Security Registrar, or at the
office of any Security Co-Registrar duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to, the Company and the
Security Registrar or any such Security Co-Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
The Debentures are issuable only as registered Debentures without coupons
in denominations of $1000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Debentures are
exchangeable for new Debentures of any authorized denominations of the same
aggregate principal amount as requested by the Holder surrendering the same. If
definitive Debentures are so delivered, the Company may make such changes to the
form of this Debenture as are necessary or appropriate to allow for the issuance
of such definitive Debentures.
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 for registration of transfer, the Company, the
Trustee, the Security Registrar, any Security Co-Registrar and any agent of the
Company or the Trustee may treat the Person in whose name this Debenture is
registered as the absolute owner hereof for all purposes, whether or not this
Debenture be overdue, and neither the Company, the Trustee, the Security
Registrar, any Security Co-Registrar nor any such agent shall be affected by
notice to the contrary.
The Holder of this Debenture shall not have recourse for the payment of
principal of or interest on this Debenture or for any claim based on this
Debenture or the Indenture against any director, officer or stockholder, past,
present or future, of the Company. By acceptance of this Debenture, the Holder
waives any such claim against any such Person.
The Indenture and this Debenture shall be governed by and construed in
accordance with the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of said state without
regard to the conflicts of laws and rules of said state.
All terms used but not defined in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
5
Unless the certificate of authentication hereon has been executed by the
Trustee under such Indenture, this Debenture shall not be entitled to any
benefit under such Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed manually or in facsimile.
Dated: July , 1998
AUTOZONE, INC.
By: ____________________________________
Executive Vice President
Attest: ________________________________
Senior Vice President, Secretary
and General Counsel
Dated: July , 1998
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated herein, referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:_______________________
Authorized Officer
6
