Registration No. 333-
As filed with the Securities and Exchange Commission on March 1, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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LOUISIANA-PACIFIC CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 2421 93-0609074
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification No.)
111 S.W. Fifth Avenue
Portland, Oregon 97204
(503) 221-0800
(Principal Executive Offices)
Gary Wilkerson, Esq.
Vice President and General Counsel
Louisiana-Pacific Corporation
111 S.W. Fifth Avenue
Portland, Oregon 97204
Telephone: (503) 221-0800
(Agent for Service)
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Copy to:
Mark E. Betzen, Esq.
Jones, Day, Reavis & Pogue
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2958
Telephone: (214) 220-3939
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. |_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |X|
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum Amount of
Title of each class of securities to Amount to be maximum offering aggregate registration
be registered registered price per unit offering price fee
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Debt Securities(1).....................
Total................ $500,000,000(2) (3) $500,000,000(2) $139,000
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(1) Also includes such indeterminate principal amount of Debt Securities and
such indeterminate number of shares of preferred stock or common stock as
may be issuable upon conversion or exchange of any Debt Securities that
provide for conversion or exchange into or for such other securities.
(2) In United States dollars or the equivalent thereof in any other currency,
currency unit or unit or composite currency or currencies. The amount
specified represents the aggregate initial offering price of the
securities registered hereunder, exclusive of any accrued interest.
(3) The proposed maximum offering price per unit will be determined from time
to time by the registrant in connection with the issuance by the
registrant of the securities registered hereunder.
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The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
will thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
SUBJECT TO COMPLETION, DATED MARCH 1, 1999
The information in this prospectus is not complete and may be changed.
Louisiana-Pacific may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where such offer or sale is prohibited.
PROSPECTUS
$500,000,000
LOUISIANA-PACIFIC CORPORATION
Debt Securities
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Louisiana-Pacific may offer up to $500,000,000 of its debt securities from
time to time in one or more series. Louisiana-Pacific will determine the amount,
price and other terms of any such offering on the basis of market conditions and
other factors existing at the time of such offering.
The terms of each offering of debt securities will be set forth in a
prospectus supplement. You should read this prospectus and the accompanying
prospectus supplement carefully before you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined whether
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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This prospectus is dated __________ __, 1999.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS..........................................................3
WHERE YOU CAN FIND MORE INFORMATION............................................3
INCORPORATION OF DOCUMENTS BY REFERENCE........................................3
LOUISIANA-PACIFIC..............................................................4
USE OF PROCEEDS................................................................4
RATIO OF EARNINGS TO FIXED CHARGES.............................................4
DESCRIPTION OF DEBT SECURITIES.................................................5
PLAN OF DISTRIBUTION..........................................................12
VALIDITY OF SECURITIES........................................................12
EXPERTS.......................................................................12
ABOUT FORWARD-LOOKING STATEMENTS..............................................13
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Louisiana-Pacific
filed with the Securities and Exchange Commission to register the distribution
of the debt securities described in this prospectus under the Securities Act of
1933 (the "Registration Statement"). Louisiana-Pacific may from time to time
sell the debt securities in one or more offerings up to a total dollar amount of
$500,000,000 or the equivalent of this amount in foreign currencies or foreign
currency units.
This prospectus provides you with a general description of the debt
securities. Each time Louisiana-Pacific offers the debt securities,
Louisiana-Pacific will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also supplement, modify or supersede other information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with the information incorporated by reference as described below under
the heading "Incorporation of Documents by Reference."
You should rely only on the information provided in this prospectus and in
any prospectus supplement, including the information incorporated by reference.
Louisiana-Pacific has not authorized anyone to provide you with different
information. Louisiana-Pacific is not offering the debt securities in any state
where the offer is not permitted. You should not assume that the information in
this prospectus, or any supplement to this prospectus, is accurate at any date
other than the date indicated on the cover page of these documents.
WHERE YOU CAN FIND MORE INFORMATION
The Registration Statement, including the exhibits thereto, contains
additional information regarding Louisiana- Pacific and the debt securities. The
statements contained in this prospectus regarding the provisions of any other
document are not necessarily complete. Accordingly, these statements are
qualified in their entirety by reference to the documents filed as exhibits to
the Registration Statement or otherwise filed with the Commission.
In addition to the Registration Statement, Louisiana-Pacific files
reports, proxy statements and other documents with the Securities and Exchange
Commission under the Securities Exchange Act of 1934. You may read and copy
these reports, proxy statements and other documents at the following locations
of the Commission:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of these documents by mail from the Public
Reference Section of the Commission, 450 Fifth street, N.W., Room 1024,
Washington, D.C. 2054, at prescribed rates. You may obtain information regarding
the operation of the Public Reference Room by calling the Commission at
1-800-SEC-0330.
The Commission maintains an Internet site that contains reports, proxy
statements and other documents relating to issuers, like Louisiana-Pacific, who
file electronically with the Commission. The address of that site is
http://www.sec.gov.
You may also inspect reports, proxy statements and other documents
relating to Louisiana-Pacific at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York.
INCORPORATION OF DOCUMENTS BY REFERENCE
As specified below, certain documents filed or to be filed by
Louisiana-Pacific with the Commission are incorporated by reference into this
prospectus. The information contained in these documents is considered to be
part of this prospectus, except that the information contained in later-dated
documents will supplement, modify or supersede, as applicable, the information
contained in earlier-dated documents.
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Louisiana-Pacific incorporates by reference into this prospectus the
documents listed below and all documents filed by Louisiana-Pacific with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 after the date of this prospectus and prior to the time that the
offering made by this prospectus is completed.
o Louisiana-Pacific's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended;
o Louisiana-Pacific's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998; and
o Louisiana-Pacific's Current Reports on Form 8-K, filed on May 26,
1998, July 15, 1998, and August 7, 1998.
You may obtain without charge a copy of any of the documents incorporated
by reference into this prospectus, except for any exhibits to those documents
that are not expressly incorporated by reference into these documents, by
writing or telephoning Louisiana-Pacific Corporation, 111 S.W. Fifth Avenue,
Portland, Oregon 97204, Attention: Investor Relations (telephone: (503)
221-0800).
LOUISIANA-PACIFIC
Louisiana-Pacific Corporation is a major building and forest products
firm, operating approximately 90 facilities in the United States, Canada and
Ireland. Louisiana-Pacific's principal products are structural and industrial
panel products, lumber, engineered wood products, cellulose insulation and
speciality products.
Louisiana-Pacific's principal executive offices are located at 111 S.W.
Fifth Avenue, Portland, Oregon 97204. Louisiana-Pacific's telephone number at
those offices is (503) 221-0800.
USE OF PROCEEDS
Unless otherwise specified in the accompanying prospectus supplement, the
net proceeds from the sale of the securities offered hereby will be used by
Louisiana-Pacific for general corporate purposes, which may include repayment of
debt, acquisitions, research and development, plant expansions and further
investments in manufacturing technology.
RATIO OF EARNINGS TO FIXED CHARGES
Louisiana-Pacific's ratio of earnings to fixed charges for each of the
periods indicated is as follows:
Nine Months Fiscal Year Fiscal Year Fiscal Year Fiscal Year Fiscal Year
Ended Ended Ended Ended Ended Ended
September 30, December 31, December 31, December 31, December 31, December 31,
1998 1997 1996 1995 1994 1993
------------- ------------ ------------ ------------ ------------ ------------
Consolidated ratio of
earnings to fixed
charges (unaudited) -- -- -- -- 34.8x 22.2x
Consolidated
deficiency of earnings
to fixed charges
(unaudited)
(in millions) $5.6 $150.6 $330.0 $102.0 -- --
For purposes of calculating these ratios, "earnings" consist of income
from continuing operations before income taxes and adjustment for minority
interests in consolidated subsidiaries plus fixed charges (excluding capitalized
interest). "Fixed charges" consist of interest incurred on indebtedness,
amortization of debt expense and an estimated portion of rental expense that is
representative of the interest factor under operating leases deemed to be the
equivalent of interest.
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DESCRIPTION OF DEBT SECURITIES
General
The securities that may be offered by this prospectus consist of up to
$500,000,000 of unsecured notes, debentures or other evidences of indebtedness
of Louisiana-Pacific (collectively, the "Debt Securities"). Louisiana-Pacific
may issue the Debt Securities, in one or more series, under an Indenture, dated
as of __________, 1999 (the "Indenture"), between Louisiana-Pacific and
______________, as Trustee (the "Trustee"). A copy of the Indenture is set forth
as Exhibit 4.1 to the registration statement and incorporated herein by
reference. Except as otherwise defined herein, capitalized terms used herein
have the meanings given to them in the Indenture.
The provisions of the Indenture will generally be applicable to all of the
Debt Securities. Selected provisions of the Indenture are described in this
prospectus. Additional or different provisions that are applicable to a
particular series of Debt Securities will, if material, be described in a
prospectus supplement relating to the offering of Debt Securities of that
series. Such provisions may include, among other things and to the extent
applicable, the following:
o the title of such Debt Securities;
o any limit on the aggregate principal amount of such Debt Securities;
o the persons to whom any interest on such Debt Securities will be
payable, if other than the registered holders thereof on the regular
record date therefor;
o the date or dates on which the principal of such Debt Securities
will be payable;
o the rate or rates at which such Debt Securities will bear interest,
if any, and the date or dates from which such interest will accrue;
o the dates on which such interest will be payable and the regular
record dates for such interest payment dates;
o the place or places where the principal of and any premium and
interest on such Debt Securities will be payable;
o the period or periods, if any, within which, and the price or prices
at which, such Debt Securities may be redeemed, in whole or in part,
at the option of Louisiana-Pacific;
o the obligation, if any, of Louisiana-Pacific to redeem or purchase
such Debt Securities pursuant to sinking fund or analogous
provisions and the terms and conditions of any such redemption or
purchase;
o the denominations in which such Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple
thereof;
o the currency or currencies or currency units, if other than currency
of the United States of America, in which payment of the principal
of and any premium or interest on such Debt Securities will be
payable, and the terms and conditions of any elections that may be
made available with respect thereto;
o any index or formula used to determine the amount of payments of
principal of and any premium or interest on such Debt Securities;
o whether such Debt Securities are to be issued in whole or in part in
the form of one or more global securities and, if so, the identity
of the depositary, if any, for such global securities;
o the terms and conditions, if any, pursuant to which such Debt
Securities are convertible into or exchangeable for common stock or
other securities of Louisiana-Pacific or any other person;
o the principal amount (or any portion of the principal amount) of
such Debt Securities which will be payable upon any declaration of
acceleration of the maturity of such Debt Securities pursuant to an
event of default;
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o the applicability to such Debt Securities of the provisions
described in "- Defeasance" below; and
o any subordination provisions applicable to such Debt Securities.
Louisiana-Pacific may issue Debt Securities at a discount from their
stated principal amount. Certain federal income tax considerations and other
special considerations applicable to any Debt Security issued with original
issue discount (an "original issue discount security") may be described in an
applicable prospectus supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any of the Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms, and
other information with respect to such Debt Securities and such foreign currency
or currencies or foreign currency unit or units will be set forth in an
applicable prospectus supplement.
Unless otherwise indicated in an applicable prospectus supplement, (1) the
Debt Securities will be issued only in fully registered form (without coupons)
in denominations of $1,000 or integral multiples thereof and (2) payment of
principal, premium (if any), and interest on the Debt Securities will be
payable, and the exchange, conversion, and transfer of Debt Securities will be
registerable, at the office or agency of Louisiana-Pacific maintained for such
purposes and at any other office or agency maintained for such purpose. No
service charge will be made for any registration of transfer or exchange of the
Debt Securities, but Louisiana-Pacific may require payment of a sum sufficient
to cover any tax or other governmental charge imposed in connection therewith.
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depositary or its nominee identified in an applicable prospectus
supplement. Unless and until it is exchanged in whole or in part for Debt
Securities in registered form, a global security may not be registered for
transfer or exchange except as a whole by the depositary for such global
security 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 nominee to a successor depositary or a nominee of such successor depositary
and except in any other circumstances described in an applicable prospectus
supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a global security
will be described in an applicable prospectus supplement. Louisiana-Pacific
expects that the following provisions will apply to depositary arrangements.
Unless otherwise specified in an applicable prospectus supplement, Debt
Securities which are to be represented by a global security to be deposited with
or on behalf of a depositary will be represented by a global security registered
in the name of such depositary or its nominee. Upon the deposit of such global
security with or on behalf of the depositary for such global security, the
depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such global
security to the accounts of institutions that are participants in such system.
The accounts to be credited will be designated by the underwriters or agents of
such Debt Securities or by Louisiana-Pacific, if such Debt Securities are
offered and sold directly by Louisiana-Pacific.
Ownership of beneficial interests in Debt Securities represented by a
global security will be limited to participants in the book-entry registration
and transfer system of the applicable depositary or persons that may hold
interests through such participants. Ownership of such beneficial interests by
such participants will be shown on, and the transfer of such ownership will be
effected only through, records maintained by the depositary or its nominee for
such global security. Ownership of such beneficial interests by persons that
hold through such participants will be shown on, and the transfer of such
ownership will be effected only through, records maintained by such
participants. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair your ability to transfer beneficial interests in a global
security.
So long as the depositary for a global security, or its nominee, is the
registered owner of such global security, such depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such global security for all purposes under the
Indenture. Unless otherwise specified in an applicable prospectus supplement,
owners of beneficial interests in such global security will not be entitled to
have any of the Debt Securities represented by such global security registered
in their names, will not receive or be entitled to receive physical
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delivery of any such Debt Securities in certificated form, and will not be
considered the owners or holders thereof for any purpose under the Indenture.
Accordingly, each person owning a beneficial interest in Debt Securities
represented by a global security must rely on the procedures of the applicable
depositary and, if such person is not a participant in the book-entry
registration and transfer system of the applicable depositary, on the procedures
of the participant through which such person owns its interest, to exercise any
rights of an owner or holder of Debt Securities under the Indenture.
Louisiana-Pacific understands that, under existing industry practices, if
an owner of a beneficial interest in Debt Securities represented by a global
security desires to give any notice or take any action that an owner or holder
of Debt Securities is entitled to give or take under Indenture, the applicable
depositary would authorize its participants to give such notice or take such
action, and such participants would authorize persons owning such beneficial
interests through such participants to give such notice or take such action or
would otherwise act upon the instructions of such persons.
Principal of and any premium and interest on Debt Securities represented
by a global security will be payable in the manner described in an applicable
prospectus supplement. Payment of principal of, and any premium or interest on,
such Debt Securities will be made to the applicable depository or its nominee,
as the case may be, as the registered owner or the holder of the global security
representing such Debt Securities. None of Louisiana-Pacific, the Trustee, any
paying agent, or the registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in Debt Securities
represented by a global security or for maintaining, supervising, or reviewing
any records relating to such beneficial ownership interests.
Certain Covenants
Maintenance of Office or Agency. Louisiana-Pacific will be required to
maintain an office or agency in each place of payment for each series of Debt
Securities for notice and demand purposes and for the purposes of presenting or
surrendering Debt Securities for payment, registration of transfer, or exchange.
Paying Agents, Etc. If Louisiana-Pacific acts as its own paying agent with
respect to any series of Debt Securities, on or before each due date of the
principal of or interest on any of the Debt Securities of that series, it will
be required to segregate and hold in trust for the benefit of the persons
entitled thereto a sum sufficient to pay such amount due and to notify the
Trustee promptly of its action or failure so to act. If Louisiana-Pacific has
one or more paying agents for any series of Debt Securities, prior to each due
date of the principal of or interest on any Debt Securities of that series, it
will deposit with a paying agent a sum sufficient to pay such amount, and
Louisiana-Pacific will promptly notify the Trustee of its action or failure so
to act (unless such paying agent is the Trustee). All moneys paid by
Louisiana-Pacific to a paying agent for the payment of principal of and interest
on any Debt Securities that remain unclaimed for two years after such principal
or interest has become due and payable may be repaid to Louisiana-Pacific, and
thereafter the holder of such Debt Securities may look only to Louisiana-Pacific
for payment thereof.
Payment of Taxes and Other Claims. Louisiana-Pacific will be required to
pay and discharge, before the same become delinquent, (1) all taxes,
assessments, and governmental charges levied or imposed upon Louisiana-Pacific
or any subsidiary of Louisiana-Pacific or their properties and (2) all claims
that if unpaid would result in a lien on their property and have a material
adverse effect on the business, assets, financial condition, or results of
operations of Louisiana-Pacific and its subsidiaries, taken as a whole (a
"Material Adverse Effect"), unless the same is being contested by proper
proceedings.
Maintenance of Properties. Louisiana-Pacific will be required to cause all
properties used in the business of Louisiana-Pacific or any subsidiary of
Louisiana-Pacific to be maintained and kept in good condition, repair, and
working order and to make any necessary renewals, replacements, and improvements
to such properties, except to the extent that the failure to do so would not
have a Material Adverse Effect.
Existence. Louisiana-Pacific will be required to, and will be required to
cause its subsidiaries to, preserve and keep in full force and effect their
existence, charter rights, statutory rights, and franchises, except to the
extent that the failure to do so would not have a Material Adverse Effect.
Compliance with Laws. Louisiana-Pacific will be required to, and will be
required to cause its subsidiaries to, comply with all applicable laws to the
extent that the failure to do so would have a Material Adverse Effect.
Restrictive Covenants. Any restrictive covenants applicable to any series
of Debt Securities will be described in an applicable prospectus supplement.
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Events of Default
The following are Events of Default under the Indenture with respect to
Debt Securities of any series:
(1) default in the payment of the principal of (or premium, if any, on)
any Debt Security of that series when it becomes due and payable;
(2) default in the payment of any interest on any Debt Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 calendar days;
(3) default in the making of any sinking fund payment as and when due by
the terms of any Debt Security of that series;
(4) default in the performance, or breach, of any other covenant or
warranty of Louisiana-Pacific in the Indenture (other than a covenant included
in the Indenture solely for the benefit of a series of Debt Securities other
than that series) and continuance of such default for a period of 60 calendar
days after written notice thereof has been given to Louisiana- Pacific as
provided in the Indenture;
(5) any nonpayment at maturity or other default (beyond any applicable
grace period) under any agreement or instrument relating to any other
indebtedness of Louisiana-Pacific, the principal amount of which is not less
than $25 million, which default results in such indebtedness becoming due prior
to its stated maturity or occurs at the final maturity thereof;
(6) certain events of bankruptcy, insolvency, or reorganization involving
Louisiana-Pacific; and
(7) any other Event of Default provided with respect to Debt Securities of
that series.
Pursuant to the Trust Indenture Act, the Trustee is required, within 90
calendar days after the occurrence of a default in respect of any series of Debt
Securities, to give to the holders of the Debt Securities of such series notice
of all such uncured defaults known to it (except that, in the case of a default
in the performance of any covenant of the character contemplated in clause (4)
of the preceding sentence, no such notice to holders of the Debt Securities of
such series will be given until at least 30 calendar days after the occurrence
thereof), except that, other than in the case of a default of the character
contemplated in clause (1), (2), or (3) of the preceding sentence, the Trustee
may withhold such notice if and so long as it in good faith determines that the
withholding of such notice is in the interests of the holders of the Debt
Securities of such series.
If an Event of Default (other than an Event of Default described in clause
(6) above) with respect to Debt Securities of any series occurs and is
continuing, either the Trustee or the holders of at least 25% in principal
amount of the Debt Securities of that series by notice as provided in the
Indenture may declare the principal amount (or, if the Debt Securities of that
series are original issue discount securities, such portion of the principal
amount as may be specified in the terms of that series) of all Debt Securities
of that series to be due and payable immediately. However, at any time after a
declaration of acceleration with respect to Debt Securities of any series has
been made, but before a judgment or decree based on such acceleration has been
obtained, the holders of a majority in principal amount of the Debt Securities
of that series may, under certain circumstances, rescind and annul such
acceleration. See "- Modification and Waiver" below. If an Event of Default
described in clause (6) above occurs, then the principal of, premium on, if any,
and accrued interest on the Debt Securities of that series will become
immediately due and payable without any declaration or other act on the part of
the Trustee of any holder of the Debt Securities of that series.
The Indenture provides that, subject to the duty of the Trustee thereunder
during an Event of Default to act with the required standard of care, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the holders of Debt
Securities, unless such holders shall have offered to the Trustee reasonable
security or indemnity. Subject to certain provisions, including those requiring
security or indemnification of the Trustee, the holders of a majority in
principal amount of the Debt Securities of any series will 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 Debt Securities of that series. In the event that
Louisiana-Pacific defaults on the payment of any interest on the Debt Securities
for a period of 30 days or defaults on the payment of any principal on the Debt
Securities when due and payable and fails, upon demand for such payment made by
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the Trustee, to make such payments, the Trustee, in its own name, may institute
a legal proceeding against Louisiana-Pacific to collect any amounts adjudged to
be payable.
No holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder unless, (1) such holder shall have previously given to the Trustee
written notice of a continuing Event of Default, (2) unless the holders of at
least 25% in aggregate principal amount of the outstanding Debt Securities of
the same series have also made such a written request, (3) such holder or
holders have offered reasonable indemnity to the Trustee to institute such
proceeding as trustee, (4) the Trustee has not received from the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of the
same series a direction inconsistent with such request, and (5) the Trustee has
failed to institute such proceeding within 60 calendar days. However, such
limitations do not apply to a suit instituted by a holder of a Debt Security for
enforcement of payment of the principal of and interest on such Debt Security on
or after the respective due dates expressed in such Debt Security.
Louisiana-Pacific is required to furnish to the Trustee annually a
statement as to the performance by Louisiana- Pacific of its obligations under
the Indenture and as to any default in such performance.
Any additional Events of Default with respect to any series of Debt
Securities, and any variations from the foregoing Events of Default applicable
to any series of Debt Securities, will be described in an applicable prospectus
supplement.
Modification and Waiver
Modifications and amendments of the Indenture may be made by
Louisiana-Pacific and the Trustee with the consent of the holders of not less
than a majority in aggregate principal amount of the Debt Securities of each
series affected thereby, except that no such modification or amendment may,
without the consent of the holder of each Debt Security affected thereby:
o change the stated maturity of, or any installment of principal of,
or interest on, any Debt Security;
o reduce the principal amount of, the rate of interest on, or the
premium, if any, payable upon the redemption of, any Debt Security;
o reduce the amount of principal of an original issue discount
security payable upon acceleration of the maturity thereof;
o change the place or currency of payment of principal of, or premium,
if any, or interest on any Debt Security;
o impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security on or after the
stated maturity or prepayment date thereof; or
o reduce the percentage in principal amount of Debt Securities of any
series, the consent of the holders of which is required for
modification or amendment of the applicable Indenture or for waiver
of compliance with certain provisions of the Indenture or for waiver
of certain defaults.
The holders of at least a majority in aggregate principal amount of the
Debt Securities of any series may on behalf of the holders of all Debt
Securities of that series waive, insofar as that series is concerned, compliance
by Louisiana-Pacific with certain covenants of the Indenture. The holders of not
less than a majority in principal amount of the Debt Securities of any series
may, on behalf of the holders of all Debt Securities of that series, waive any
past default under the Indenture with respect to that series, except a default
in the payment of the principal of, or premium, if any, or interest on, any Debt
Security of that series or in respect of a provision which under the Indenture
cannot be modified or amended without the consent of the holder of each Debt
Security of that series affected thereby.
Defeasance
Unless otherwise specified in a prospectus supplement applicable to a
particular series of Debt Securities, Louisiana- Pacific, at its option, (a)
will be deemed to have been discharged from its obligations with respect to the
Debt Securities of such series (except for certain obligations, including
obligations to register the transfer or exchange of Debt Securities of such
series, to replace destroyed, stolen, lost, or mutilated Debt Securities of such
series, and to maintain an office or agency in respect of the Debt Securities
and hold moneys for payment in trust) or (b) will be released from its
obligations
9
to comply with the covenants described under " - Certain Covenants" above (other
than the obligations described in the exception to clause (a) of this paragraph)
with respect to the Debt Securities of such series, and the occurrence of an
event described in clause (4) under " -- Events of Default" above with respect
to any defeased covenant and clauses (3), (5), and (6) under " -- Events of
Default" above will no longer be an Event of Default with respect to the Debt
Securities of such series if, in either case, Louisiana-Pacific irrevocably
deposits with the Trustee, in trust, money or direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged or obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable at the issuer's
option ("U.S. Government Obligations") or certain depositary receipts therefor
that through the payment of interest thereon and principal thereof in accordance
with their terms will provide money in an amount sufficient to pay all the
principal of (and premium, if any) and any interest on the Debt Securities of
such series on the dates such payments are due in accordance with the terms of
such Debt Securities. Such defeasance may be effected only if, among other
things:
o no Event of Default or event which with the giving of notice or
lapse or time, or both, would become an Event of Default under the
Indenture shall have occurred and be continuing on the date of such
deposit;
o no Event of Default described under clause (6) under "-- Events of
Default" above or event that with the giving of notice or lapse of
time, or both, would become an Event of Default described under such
clause (6) shall have occurred and be continuing at any time on or
prior to the 90th calendar day following such date of deposit;
o in the event of defeasance under clause (1) above, Louisiana-Pacific
has delivered an opinion of counsel, stating that (1)
Louisiana-Pacific has received from, or there has been published by,
the IRS a ruling or (2) since the date of the Indenture there has
been a change in applicable federal law, in either case to the
effect that, among other things, the holders of the Debt Securities
of such series will not recognize gain or loss for United States
federal income tax purposes as a result of such deposit or
defeasance and will be subject to United States federal income tax
in the same manner as if such defeasance had not occurred; and
o in the event of defeasance under clause (2) above, Louisiana-Pacific
has delivered an opinion of counsel to the effect that, among other
things, the holders of the Debt Securities of such series will not
recognize gain or loss for United States federal income tax purposes
as a result of such deposit or defeasance and will be subject to
United States federal income tax in the same manner as if such
defeasance had not occurred.
If Louisiana-Pacific fails to comply with its remaining obligations under
the Indenture after a defeasance of such Indenture with respect to the Debt
Securities of any series as described under clause (2) above and the Debt
Securities of such series are declared due and payable because of the occurrence
of any undefeased Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee may be insufficient to pay amounts due
on the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. However, Louisiana-Pacific will remain liable in
respect of such payments.
Satisfaction and Discharge
Louisiana-Pacific, at its option, may satisfy and discharge the Indenture
(except for specified obligations of Louisiana-Pacific and the Trustee,
including, among others, the obligations to apply money held in trust) when:
o either (1) all Debt Securities previously authenticated and
delivered (subject to specified exceptions relating to Debt
Securities that have otherwise been satisfied or provided for) have
been delivered to the Trustee for cancellation or (2) all such Debt
Securities not theretofore delivered to the Trustee for cancellation
have become due and payable, will become due and payable at their
stated maturity within one year, or 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, and
Louisiana-Pacific has deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such Debt
Securities not previously delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such
deposit (in the case of Debt Securities which have become due and
payable) or to the stated maturity or redemption date, as the case
may be;
10
o Louisiana-Pacific has paid or caused to be paid all other sums
payable under the Indenture by Louisiana- Pacific; and
o Louisiana-Pacific has delivered to the Trustee an officer's
certificate and an opinion of counsel, each to the effect that all
conditions precedent relating to the satisfaction and discharge of
the Indenture have been satisfied.
Limitations on Merger and Certain Other Transactions
Prior to the satisfaction and discharge of the Indenture,
Louisiana-Pacific may not consolidate with or merge with or into any other
person, or transfer all or substantially all of its properties and assets to
another person unless:
o either (1) Louisiana-Pacific is the continuing or surviving person
in such a consolidation or merger or (2) the person (if other than
Louisiana-Pacific) formed by such consolidation or into which
Louisiana-Pacific is merged or to which all or substantially all of
the properties and assets of Louisiana-Pacific are transferred
(Louisiana-Pacific or such other person being referred to as the
"Surviving Person") is a corporation organized and validly existing
under the laws of the United States, any state thereof, or the
District of Columbia, and expressly assumes, by a supplemental
indenture, all the obligations of Louisiana-Pacific under the Debt
Securities and the Indenture;
o immediately after the transaction and the incurrence or anticipated
incurrence of any indebtedness to be incurred in connection
therewith, no Event of Default exists; and
o an officer's certificate is delivered to the Trustee to the effect
that both of the conditions set forth above have been satisfied and
an opinion of outside counsel has been delivered to the Trustee to
the effect that the first condition set forth above has been
satisfied.
The Surviving Person will succeed to and be substituted for
Louisiana-Pacific with the same effect as if it has been named in the Indenture
as a party thereto, and thereafter the predecessor corporation will be relieved
of all obligations and covenants under the Indenture and the Debt Securities.
Governing Law
The Indentures and the Debt Securities will governed by, and construed in
accordance with, the laws of the State of New York.
Regarding the Trustee
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of Louisiana- Pacific within three months of, or
subsequent to, a default by Louisiana-Pacific to make payment in full of
principal of or interest on any series of Debt Securities when and as the same
becomes due and payable, to obtain payment of claims, or to realize for its own
account on property received in respect of any such claim as security or
otherwise, unless and until such default is cured. However, the Trustee's rights
as a creditor of Louisiana-Pacific will not be limited if the creditor
relationship arises from, among other things:
o the ownership or acquisition of securities issued under any
indenture or having a maturity of one year or more at the time of
acquisition by the Trustee;
o certain advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by the Indenture;
o disbursements made in the ordinary course of business in its
capacity as indenture trustee, transfer agent, registrar, custodian,
or paying agent or in any other similar capacity;
o indebtedness created as a result of goods or securities sold in a
cash transaction or services rendered or premises rented; or
11
o the acquisition, ownership, acceptance, or negotiation of certain
drafts, bills of exchange, acceptances, or other obligations.
The Indenture does not prohibit the Trustee from serving as trustee under
any other indenture to which Louisiana- Pacific may be a party from time to time
or from engaging in other transactions with Louisiana-Pacific. If the Trustee
acquires any conflicting interest within the meaning of the Trust Indenture Act
of 1939 and there is an Event of Default with respect to any series of Debt
Securities, it must eliminate such conflict or resign.
PLAN OF DISTRIBUTION
Louisiana-Pacific may sell the Debt Securities in any of three ways: (1)
through underwriters, (2) through agents, or (3) directly to a limited number of
institutional purchasers or to a single purchaser. The prospectus supplement
with respect to each series of Debt Securities will set forth the terms of the
offering of the Debt Securities of such series, including the name or names of
any underwriters, the purchase price and the proceeds to Louisiana-Pacific from
such sale, any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
the Debt Securities of such series may be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The Debt
Securities may be either offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the prospectus supplement, the obligations of the
underwriters to purchase Debt Securities will be subject to various conditions
precedent and the underwriters will be obligated to purchase all of the Debt
Securities of a series if any are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Debt Securities may be sold directly by Louisiana-Pacific or through
agents designated by Louisiana-Pacific from time to time. Any agent involved in
the offer or sale of the Debt Securities in respect of which this prospectus is
delivered will be named in, and any commissions payable by Louisiana-Pacific to
such agent will be set forth in, the prospectus supplement. Unless otherwise
indicated in the prospectus supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
Louisiana-Pacific may authorize agents or underwriters to solicit offers
by certain types of institutions to purchase Debt Securities from
Louisiana-Pacific at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be subject only
to those conditions set forth in the prospectus supplement and the prospectus
supplement will set forth the commissions payable for solicitations of such
contracts.
Agents and underwriters may be entitled under agreements entered into with
Louisiana-Pacific to indemnification by Louisiana-Pacific against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for, Louisiana-Pacific in
the ordinary course of business.
Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are sold by
Louisiana-Pacific for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. Louisiana-Pacific
cannot give any assurance as to the liquidity of the trading market for any Debt
Securities.
VALIDITY OF SECURITIES
Unless otherwise indicated in an applicable prospectus supplement relating
to the Debt Securities, the validity of the Debt Securities offered hereby will
be passed upon for Louisiana-Pacific by Jones, Day, Reavis & Pogue. Patrick F.
McCartan, the managing partner of Jones, Day, Reavis & Pogue, is currently a
director of Louisiana-Pacific.
12
EXPERTS
The financial statements of Louisiana-Pacific at and for the year ended
December 31, 1997 incorporated in this prospectus by reference from
Louisiana-Pacific's Annual Report on Form 10-K for the same year, as amended,
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
The financial statements of Louisiana-Pacific at and for the two-year
period ended December 31, 1996 incorporated in this prospectus by reference from
Louisiana-Pacific's Annual Report on Form 10-K for the year ended December 31,
1997, as amended, have been audited by Arthur Andersen LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
ABOUT FORWARD-LOOKING STATEMENTS
Section 27A of the Securities Act and Section 21E of the Exchange Act
provide a "safe harbor" for forward-looking statements to encourage companies to
provide prospective information about their businesses and other matters as long
as those statements are identified as forward-looking and are accompanied by
meaningful cautionary statements identifying important factors that could cause
actual results to differ materially from those discussed in the statements. This
prospectus contains and incorporates by reference, and each prospectus
supplement may contain, forward-looking statements. Such statements are or will
be based upon the beliefs and assumptions of, and on information available to,
the management of Louisiana-Pacific.
The following statements are or may constitute forward-looking statements:
(1) statements preceded by, followed by or that include the words "may," "will,"
"could," "should," "believe," "expect," "anticipate," "intend," "plan,"
"estimate," "potential," "continue" or "future" or the negative or other
variations thereof and (2) other statements regarding matters that are not
historical facts. Such forward-looking statements are subject to various risks
and uncertainties, including the following:
o risks and uncertainties relating to the possible invalidity of the
underlying beliefs and assumptions;
o possible changes or developments in social, economic, business,
industry, market, legal and regulatory circumstances and conditions;
and
o actions taken or omitted to be taken by third parties, including
customers, suppliers, business partners, competitors and
legislative, regulatory, judicial and other governmental authorities
and officials.
In addition to the foregoing and any risks and uncertainties specifically
identified in the text surrounding such forward-looking statements, any
statements in the reports, proxy statements and other documents referred to in
"Where You Can Find More Information" that warn of risks or uncertainties
associated with future results, events or circumstances identify important
factors that could cause actual results, events and circumstances to differ
materially from those reflected in such forward-looking statements.
13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions
(which will be described in an applicable prospectus supplement), are estimated
as follows:
Securities and Exchange Commission registration fee ..... $139,000
Legal fees and expenses.................................. 150,000
Accounting fees and expenses............................. 50,000
Printing and engraving expenses.......................... 100,000
Trustee's fees and expenses.............................. 20,000
Miscellaneous expenses(1)................................ 256,000
-------
Total.......................................... $715,000
(1) Includes estimate of blue sky fees and expenses, NASD filing fees, and
rating agency fees.
Item 15. Indemnification of Directors and Officers
The restated certificate of incorporation of Louisiana-Pacific (the
"Certificate of Incorporation") generally provides that the directors of
Louisiana-Pacific will have no personal liability to Louisiana-Pacific or its
stockholders for monetary damages resulting from breaches of their fiduciary
duties. However, Louisiana-Pacific's directors nonetheless remain liable for
breaches of their duty of loyalty to Louisiana-Pacific and its stockholders, as
well as for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law and transactions from which a director
derives improper personal benefit. In addition, the Certificate of Incorporation
does not absolve directors of liability under Section 174 of the Delaware
General Corporation Law, which makes directors personally liable for unlawful
dividends or unlawful stock repurchases or redemptions in certain circumstances
and expressly sets forth a negligence standard with respect to such liability.
The Certificate of Incorporation and the bylaws of Louisiana-Pacific (the
"Bylaws") provide for the indemnification of the directors and officers of
Louisiana-Pacific to the full extent that may be permitted by Section 145 of the
Delaware General Corporation Law from time to time, and the Bylaws provide for
various procedures relating thereto. Under Section 145 of the Delaware General
Corporation Law, directors, officers, employees and other individuals may be
indemnified against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation -- a "derivative action")
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of conduct is applicable in the case of a
derivative action, but indemnification extends only to expenses (including
attorneys' fees) incurred in connection with defense or settlement of such an
action and Delaware law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has been
found liable to the corporation.
Louisiana-Pacific maintains insurance policies under which the insurer is
required, subject to the terms and conditions specified in such policies, to
indemnify any director or officer of Louisiana-Pacific against liabilities and
expenses, including without limitation attorneys' fees, judgments, fines and
amounts paid in settlement, incurred by such director or officer in his or her
capacity as such upon a determination that such director or officer acted in
good faith. The premiums for such insurance policies are paid by
Louisiana-Pacific.
Item 16. Exhibits
1.1 Underwriting Agreement (to be filed, as applicable to a particular
offering of Debt Securities, as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference thereto)
4.1 Form of Indenture
II-1
4.2 Supplemental Indenture (to be filed, as applicable to a particular
offering of Debt Securities, as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference thereto)
5.1 Form of Opinion of Jones, Day, Reavis & Pogue
12.1 Statement re: Computation of Ratios
23.1 Consent of Deloitte & Touche, LLP*
23.2 Consent of Arthur Andersen, LLP*
23.3 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1 Powers of Attorney
25.1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of ________ to act as trustee under the
Indenture*
- ----------
* To be filed by amendment
Item 17. Undertakings
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(c) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (a) and
(b) above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time will be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities registered hereby which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in
this registration statement will be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time will be deemed to be the initial bona fide
offering thereof.
II-2
The registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of counsel for the
registrant the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Portland, Oregon on March 1, 1999.
LOUISIANA-PACIFIC CORPORATION
By /s/ Gary C. Wilkerson
----------------------------------
Gary C. Wilkerson
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on March 1, 1999.
Signature Title
* Chairman and Chief Executive Officer
- ------------------------------- (principal executive officer) and
Mark A. Suwyn Director
* Vice President, Finance and Treasurer
- ------------------------------- (principal financial officer and
Curtis M. Stevens principal accounting officer)
* Director
- -------------------------------
John W. Barter
* Director
- -------------------------------
William C. Brooks
* Director
- -------------------------------
Archie W. Dunham
* Director
- -------------------------------
Paul Hansen
* Director
- -------------------------------
Bonnie G. Hill
* Director
- -------------------------------
Donald R. Kayser
* Director
- -------------------------------
Patrick F. McCartan
* Director
- -------------------------------
Lee C. Simpson
The undersigned, by signing his name hereto, does sign and execute this
registration statement pursuant to the Powers of Attorney executed by the
above-named persons and filed as Exhibit 24.1 to this registration statement.
/s/ Gary C. Wilkerson
------------------------
Gary C. Wilkerson
Attorney-in-Fact
II-4
INDEX TO EXHIBITS
Exhibit
No. Description
------- --------------------------------------------------------------------
1.1 Underwriting Agreement (to be filed, as applicable to a particular
offering of Debt Securities, as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference thereto)
4.1 Form of Indenture
4.2 Supplemental Indenture (to be filed, as applicable to a particular
offering of Debt Securities, as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference thereto)
5.1 Form of Opinion of Jones, Day, Reavis & Pogue
12.1 Statement re: Computation of Ratios
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of Arthur Andersen LLP*
23.3 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1 Powers of Attorney
25.1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of ___________ to act as trustee under the
Indenture*
- ----------
* To be filed by amendment
II-5
Exhibit 4.1
================================================================================
Louisiana-Pacific Corporation
and
____________, Trustee
Indenture
DATED AS OF _______, 1999
DEBT SECURITIES
================================================================================
LOUISIANA-PACIFIC CORPORATION
DEBT SECURITIES
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of
the provisions inserted pursuant to Sections 310 - 318(a), inclusive, of the
Trust Indenture Act of 1939, as amended.
TRUST INDENTURE ACT SECTIONS OF INDENTURE
- ------------------- ---------------------
ss.310(a)(1) ........................................ 9.08
(a)(2) ........................................ 9.08
(a)(3) ........................................ Inapplicable
(a)(4) ........................................ Inapplicable
(a)(5) ........................................ 9.08
(b) ........................................ 9.07 and 9.09
(c) ........................................ Inapplicable
ss.311(a) ........................................ 9.12
(b) ........................................ 9.12
(c) ........................................ Inapplicable
ss.312(a) ........................................ 7.01 and 7.02
(b) ........................................ 7.02
(c) ........................................ 7.02
ss.313(a) ........................................ 7.03
(b) ........................................ 7.03
(c) ........................................ 7.03
(d) ........................................ 7.03
ss.314(a) ........................................ 7.04
(a)(4) ........................................ 1.01 and 6.07
(b) ........................................ Inapplicable
(c)(1) ........................................ 13.05
(c)(2) ........................................ 13.05
(c)(3) ........................................ Inapplicable
(d) ........................................ Inapplicable
(e) ........................................ 13.05
(f) ........................................ Inapplicable
ss.315(a) ........................................ 9.01
(b) ........................................ 8.08
(c) ........................................ 9.01
(d) ........................................ 9.01
(e) ........................................ 8.07
ss.316(a) ........................................ 1.01
(a)(1)(A) ........................................ 8.01 and 8.06
(a)(1)(B) ........................................ 8.01
(a)(2) ........................................ Inapplicable
(b) ........................................ 8.09
(c) ........................................ 13.11
ss.317(a)(1) ........................................ 8.02
(a)(2) ........................................ 8.02
(b) ........................................ 6.03
ss.318(a) ........................................ 13.08
* The Cross Reference Sheet is not part of the Indenture.
Table of Contents
PAGE
----
Recitals.....................................................................1
Form of Face of Security...............................................1
Form of Reverse of Security............................................3
Form of Trustee's Certificate Of Authentication for Securities.........7
Form of Legend for Global Securities...................................7
Article I. Definitions.....................................................8
Section 1.01. Certain Terms Defined....................................8
Act............................................................8
Affiliate......................................................8
Authenticating Agent...........................................8
Board of Directors.............................................8
Board Resolution...............................................9
Business Day...................................................9
Capital Lease..................................................9
Capital Lease Obligation.......................................9
Commission.....................................................9
Common Stock...................................................9
Company........................................................9
Company Request or Company Order..............................10
Corporate Trust Office........................................10
Covenant Defeasance...........................................10
Default.......................................................10
Defaulted Interest............................................10
Defeasance....................................................10
Defeasible Series.............................................10
Depositary....................................................10
Event of Default..............................................10
Exchange Act..................................................11
GAAP..........................................................11
Global Security...............................................11
Holder........................................................11
Indebtedness..................................................11
Indenture.....................................................12
Interest......................................................12
Interest Payment Date.........................................12
Material Adverse Effect.......................................12
Maturity......................................................12
Notice of Default.............................................13
Officer's Certificate.........................................13
Opinion of Counsel............................................13
Original Issue Discount Security..............................13
Outstanding...................................................13
Paying Agent..................................................14
Person........................................................14
Place of Payment..............................................14
Predecessor Security..........................................14
Redemption Date...............................................14
Redemption Price..............................................14
Regular Record Date...........................................15
Responsible Officer...........................................15
Securities....................................................15
Security Register and Security Registrar......................15
Special Record Date...........................................15
Stated Maturity...............................................15
Subsidiary....................................................16
Trust Indenture Act...........................................16
Trustee.......................................................16
U.S. Government Obligation....................................16
Vice President................................................17
Article II. The Securities................................................17
Section 2.01. Designation and Amount of Securities....................17
Section 2.02. Form of Securities and Trustee's Certificate of
Authentication..........................................18
Section 2.03. Date and Denominations..................................19
Section 2.04. Execution, Authentication and Delivery of Securities....19
Section 2.05. Registration of Transfer and Exchange...................20
Section 2.06. Temporary Securities....................................22
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities.......22
Section 2.08. Cancellation of Surrendered Securities..................23
Section 2.09. Payment of Interest; Interest Rights Preserved..........23
Section 2.10. Persons Deemed Owners...................................24
Section 2.11. Computation of Interest.................................24
Section 2.12. CUSIP Numbers...........................................25
Article III. Redemption of Securities......................................25
Section 3.01. Applicability of Article................................25
Section 3.02. Election to Redeem; Notice to Trustee...................25
Section 3.03. Deposit of Redemption Price.............................26
Section 3.04. Securities Payable on Redemption Date...................26
Section 3.05. Securities Redeemed in Part.............................26
Article IV. Sinking Funds..................................................27
Section 4.01. Applicability of Article................................27
Section 4.02. Satisfaction of Sinking Fund Payments With Securities...27
Section 4.03. Redemption of Securities for Sinking Fund...............27
(ii)
Article V. Defeasance and Covenant Defeasance..............................28
Section 5.01. Company's Option to Effect Defeasance or Covenant
Defeasance..............................................28
Section 5.02. Defeasance and Discharge................................28
Section 5.03. Covenant Defeasance.....................................28
Section 5.04. Conditions to Defeasance or Covenant Defeasance.........29
Section 5.05. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions........30
Section 5.06. Reinstatement...........................................31
Article VI. Particular Covenants of the Company............................31
Section 6.01. Payment of Principal, Premium and Interest on
Securities..............................................31
Section 6.02. Maintenance of Office or Agency.........................31
Section 6.03. Money for Securities Payments to be Held in Trust.......32
Section 6.04. Payment of Taxes and Other Claims.......................33
Section 6.05. Maintenance of Properties...............................33
Section 6.06. Existence...............................................33
Section 6.07. Compliance with Laws....................................34
Section 6.08. Statement by Officers as to Default.....................34
Section 6.09. Waiver of Certain Covenants.............................34
Article VII. Securities Holders' Lists And Reports By The Company And
The Trustee...................................................34
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders.................................................34
Section 7.02. Preservation of Information; Communication to Holders...35
Section 7.03. Reports by Trustee......................................35
Section 7.04. Reports by Company......................................35
Article VIII. Default......................................................35
Section 8.01. Event of Default........................................35
Section 8.02. Covenant of Company to Pay to Trustee Whole Amount
Due on Securities on Default in Payment of Interest or
Principal; Suits for Enforcement by Trustee.............38
Section 8.03. Application of Money Collected by Trustee...............39
Section 8.04. Limitation on Suits by Holders of Securities............39
Section 8.05. Rights and Remedies Cumulative; Delay or Omission in
Exercise of Rights not a Waiver of Event of Default.....40
Section 8.06. Rights of Holders of Majority in Principal Amount of
Outstanding Securities to Direct Trustee................40
Section 8.07. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee........41
Section 8.08. Notice of Defaults......................................41
Section 8.09. Unconditional Right of Holders to Receive Principal,
Premium, and Interest...................................41
Section 8.10. Restoration of Rights and Remedies......................41
Section 8.11. Trustee May File Proofs of Claims.......................41
(iii)
Article IX. Concerning the Trustee.........................................42
Section 9.01. Certain Duties and Responsibilities.....................42
Section 9.02. Certain Rights of Trustee...............................42
Section 9.03. Not Responsible for Recitals or Issuance of Securities..43
Section 9.04. May Hold Securities.....................................43
Section 9.05. Money Held in Trust.....................................43
Section 9.06. Compensation and Reimbursement..........................43
Section 9.07. Disqualification; Conflicting Interests.................44
Section 9.08. Corporate Trustee Required Eligibility..................44
Section 9.09. Resignation and Removal; Appointment of Successor.......44
Section 9.10. Acceptance of Appointment by Successor..................45
Section 9.11. Merger, Conversion, Consolidation, or Succession to
Business................................................46
Section 9.12. Preferential Collection of Claims Against Company.......47
Section 9.13. Appointment of Authenticating Agent.....................47
Section 9.14. Trustee's Application for Instruction from the Company..48
Article X. Supplemental Indentures And Certain Actions.....................49
Section 10.01. Purposes for Which Supplemental Indentures May Be
Entered Into Without Consent of Holders................49
Section 10.02. Modification of Indenture With Consent of Holders of
at Least a Majority in Principal Amount of Outstanding
Securities.............................................50
Section 10.03. Execution of Supplemental Indentures...................51
Section 10.04. Effect of Supplemental Indentures......................51
Section 10.05. Conformity with Trust Indenture Act....................51
Section 10.06. Reference in Securities to Supplemental Indentures.....51
Article XI. Consolidation, Merger, Sale, or Transfer.......................51
Section 11.01. Consolidations and Mergers of Company and Sales
Permitted Only on Certain Terms........................51
Article XII. Satisfaction and Discharge of Indenture.......................52
Section 12.01. Satisfaction and Discharge of Indenture................52
Section 12.02. Application of Trust Money.............................53
Article XIII. Miscellaneous Provisions.....................................53
Section 13.01. Successors and Assigns of Company Bound by Indenture...53
Section 13.02. Service of Required Notice to Trustee and Company......53
Section 13.03. Service of Required Notice to Holders; Waiver..........53
Section 13.04. Indenture and Securities to be Construed in Accordance
with the Laws of the State of New York.................54
Section 13.05. Compliance Certificates and Opinions...................54
Section 13.06. Form of Documents Delivered to Trustee.................54
Section 13.07. Payments Due on Non-Business Days......................54
Section 13.08. Provisions Required by Trust Indenture Act to Control..54
Section 13.09. Invalidity of Particular Provisions....................55
Section 13.10. Indenture May be Executed In Counterparts..............55
(iv)
Section 13.11. Acts of Holders; Record Dates..........................55
Section 13.12. Effect of Headings and Table of Contents...............57
Section 13.13. Benefits of Indenture..................................57
(v)
Indenture, dated as of ________, 1999, between Louisiana-Pacific
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and ________________, a _______________ duly
organized and existing under the laws of the United States of America (herein
called the "Trustee").
Recitals of the Company
WHEREAS, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, and other evidences of indebtedness (the "Securities"), to be
issued in one or more series up to such principal amount or amounts as may be
from time to time authorized in accordance with the terms of this Indenture
provided.
WHEREAS, the Securities of each series will be in substantially the
form set forth below, or in such other form as may 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 other
variations as are required or permitted by this Indenture, and may have such
letters, numbers, or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
[Form of Face of Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
Louisiana-Pacific Corporation
-----------------------------
CUSIP No.___
No._______ $____
Louisiana-Pacific Corporation, a corporation duly organized and
existing under the laws of Delaware (hereinafter called the "Company," which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ___________________________, or
registered assigns, the principal sum on $______________ on
___________________________ [if the Security is to bear interest prior to
Maturity, insert: ", and to pay interest thereon from or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, on
and __________________ in each year, commencing on _____________ , a% per rate
of ________________% per annum, until the principal hereof is paid or made
available for payment [IF APPLICABLE, INSERT: ", and at the rate of
_____________% per annum on any overdue principal and premium and on any overdue
installment of interest"]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which will be the
___________________ or ________________ (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 will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof will be given to Holders of
Securities of this series not less than 10 calendar days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture"].
[If the Security is not to bear interest prior to Maturity, insert:
"The principal of this Security will not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption, or at Stated
Maturity, and in such case the overdue principal of this Security will bear
interest at the rate of % per annum which will accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal will be payable on demand. Any
such interest on any overdue principal that is not so paid on demand will bear
interest at the rate of % per annum which will accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest will also be payable on demand."]
Payment of the principal of (and premium, if any) and [if
applicable, insert: "any such"] interest on this Security will be made at the
office or agency of the Company maintained for the purpose in
_____________________, 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 [IF APPLICABLE, INSERT: "; PROVIDED, HOWEVER, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address appears in the Security Register"].
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE
REVERSE HEREOF. SUCH PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any purpose
until the certificate of authentication herein has been signed manually by the
Trustee under the Indenture referred to on the reverse side hereof.
2
In Witness Whereof, this instrument has been duly executed in
accordance with the Indenture.
Louisiana-Pacific Corporation
By:_________________________________________
Attest:
By:____________________
[Form of Reverse of Security]
Louisiana-Pacific Corporation
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of _______, 1999 (herein called the
"Indenture"), between the Company and ____________ as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties, and
immunities thereunder of the Company, the Trustee, and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [IF APPLICABLE, INSERT: ", limited in aggregate principal amount
to $____"].
[If applicable, insert: "The Securities of this series are subject
to redemption upon not less than 30 calendar days' notice by mail,[IF
APPLICABLE, INSERT: "(a) on ________________ in each year commencing with the
year ______________ and ending with the year _________________ through operation
of the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (b)"] at any time [IF APPLICABLE, INSERT: "on or after
_______, __"], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [IF APPLICABLE, INSERT: "on or before ____________, __%, and if
redeemed"] during the 12-month period beginning ______________ of the years
indicated,
3
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT: "whether
through operation of the sinking fund or otherwise)"] with accrued interest to
the Redemption Date, but interest installments the Stated Maturity of which is
on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture."]
[If applicable, insert: "The Securities of this series are subject
to redemption upon not less than 30 calendar days' notice by mail,[IF
APPLICABLE, INSERT: "(a) on ____________ in each year commencing with the year
___________ and ending with the year ________ through operation of the sinking
fund for this series at the following Redemption Prices (expressed as
percentages of the principal amount) applicable to redemption through operation
of the sinking fund and (b)"] at any time [IF APPLICABLE, INSERT: "on or after
______________, __"], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal
amount) applicable to redemption otherwise than through operation of the sinking
fund: If redeemed [IF APPLICABLE, INSERT: "on or before __________, __%, and if
redeemed"] during the 12-month period beginning ______ of the years indicated,
Redemption Price For Redemption Price For
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund Of The Sinking Fund
- ---- -------------------- ----------------------
and thereafter at a Redemption Price _______% of the principal amount, together
in the case of any such redemption (whether through operation of the sinking
fund or otherwise) with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture."]
4
[If applicable, insert: "Notwithstanding the foregoing, the Company
may not, prior to _______________, redeem any Securities of this series as
contemplated by [IF APPLICABLE, INSERT: "Clause (b) of"] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than _________% per annum."]
[If applicable, insert: "The sinking fund for this series provides
for the redemption on ________________ in each year beginning with the year
____________ and ending with the year ________________ of [IF APPLICABLE,
INSERT: "not less than $________________ ("mandatory sinking fund") and not more
than"] $________________ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise
than through [IF APPLICABLE, INSERT: "mandatory"] sinking fund payments may be
credited against subsequent [IF APPLICABLE, INSERT: "mandatory"] sinking fund
payments otherwise required to be made [IF APPLICABLE, INSERT: "in the inverse
order in which they become due"]."]
[If the Security is subject to redemption of any kind, insert: "In
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof."]
[If applicable, insert: "The Indenture contains provisions for
defeasance at any time of (a) the entire indebtedness evidenced by this Security
or (b) certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture."]
[If the Security is not an Original Issue Discount Security, insert:
"If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture."]
[If the Security is an Original Issue Discount Security, insert: "If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount will be equal to [INSERT FORMULA FOR DETERMINING THE
AMOUNT]. Upon payment (a) of the amount of principal so declared due and payable
and (b) of interest on any overdue principal and overdue interest, all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series will terminate."]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the
5
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
will be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security will not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding for 60 calendar
days after receipt of such notice, request, and offer of indemnity. The
foregoing will apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture will alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge will 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.
6
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security shall be overdue, and
neither the Company, the Trustee, nor any such agent will be affected by notice
to the contrary.
All terms used in this Security that are defined in the Indenture
will have the respective meanings assigned to them in the Indenture.
C. The Trustee's certificate of authentication will be in
substantially the following form:
[Form of Trustee's Certificate Of Authentication for Securities]
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------,
as Trustee
Dated:________________ By:______________________
Authorized Signatory
D. Every Global Security authenticated and delivered hereunder will
bear a legend in substantially the following form:
[Form of Legend for Global Securities]
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof, and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, this Security will be a Global Security subject to the
foregoing, except in such limited circumstances.
E. All acts and things necessary to make the Securities, when the
Securities have been executed by the Company and authenticated by the Trustee
and delivered as provided in this Indenture, the valid, binding, and legal
obligations of the Company and to constitute these
7
presents a valid indenture and agreement according to its terms, have been done
and performed, and the execution and delivery by the Company of this Indenture
and the issue hereunder of the Securities have in all respects been duly
authorized; and the Company, in the exercise of legal right and power in it
vested, is executing and delivering this Indenture and proposes to make,
execute, issue, and deliver the Securities.
Now, Therefore, this Indenture Witnesseth:
In order to declare the terms and conditions upon which the
Securities are authenticated, issued, and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of the respective Holders from time to time of the Securities or of a
series thereof, as follows:
Article I. Definitions.
SECTION 1.01. CERTAIN TERMS DEFINED.
(a) The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context of this Indenture otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture that are defined in the Trust Indenture Act, either
directly or by reference therein (except as herein otherwise expressly provided
or unless the context of this Indenture otherwise requires), have the respective
meanings assigned to such terms in the Trust Indenture Act as in force at the
date of this Indenture as originally executed.
ACT:
The term "Act," when used with respect to any Holder, has the
meaning set forth in Section 13.11.
AFFILIATE:
The term "Affiliate" means, with respect to a particular Person, any
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this definition, control
of a 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 of the foregoing.
8
AUTHENTICATING AGENT:
The term "Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 9.13 to act on behalf of the Trustee to authenticate
Securities of one or more series.
BOARD OF DIRECTORS:
The term "Board of Directors" means the Board of Directors of the
Company or a duly authorized committee of such Board.
BOARD RESOLUTION:
The term "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:
The term "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 required by law or executive order to close.
CAPITAL LEASE:
The term "Capital Lease" means, with respect to any Person, any
lease of property (whether real, personal, or mixed) by such Person or its
Subsidiaries as lessee that would be capitalized on a balance sheet of such
Person or its Subsidiaries prepared in conformity with GAAP, other than, in the
case of such Person or its Subsidiaries, any such lease under which such Person
or any of its Subsidiaries is the lessor.
CAPITAL LEASE OBLIGATION:
The term "Capital Lease Obligations" means, with respect to any
Person, the capitalized amount of all obligations of such Person and its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
COMMISSION:
The term "Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
9
COMMON STOCK:
The term "Common Stock" means the common stock of the Company.
COMPANY:
The term "Company" means Louisiana-Pacific Corporation, a Delaware
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" will mean such
successor Person.
COMPANY REQUEST OR COMPANY ORDER:
The term "Company Request" or "Company Order" means a written
request or order, respectively, signed in the name of the Company by the
Chairman or any Vice Chairman of the Board of Directors, the Chief Executive
Officer, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary, or any Assistant Secretary of the Company, and
delivered to the Trustee.
CORPORATE TRUST OFFICE:
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date of initial execution of this Indenture
is________________________, Attention: ___________________.
COVENANT DEFEASANCE:
The term "Covenant Defeasance" has the meaning set forth in Section
5.03.
DEFAULT:
The term "Default" means any event which, with notice or passage of
time or both, would constitute an Event of Default.
DEFAULTED INTEREST:
The term "Defaulted Interest" has the meaning set forth in Section
2.09.
DEFEASANCE:
The term "Defeasance" has the meaning set forth in Section 5.02.
DEFEASIBLE SERIES:
The term "Defeasible Series" has the meaning set forth in Section
5.01.
10
DEPOSITARY:
The term "Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Securities as contemplated by Section
2.01.
EVENT OF DEFAULT:
The term "Event of Default" has the meaning set forth in Section
8.01(a).
EXCHANGE ACT:
The term "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, as the same may be in effect from time to time.
GAAP:
The term "GAAP" means generally accepted accounting principles in
the United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and The American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by any
successor entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
GLOBAL SECURITY:
The term "Global Security" means a Security that evidences all or
part of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
HOLDER:
The term "Holder" means a person in whose name a particular Security
is registered in the Security Register.
INDEBTEDNESS:
The term "Indebtedness" means, as applied to any Person, without
duplication: (a) all obligations of such Person for borrowed money; (b) all
obligations of such Person for the deferred purchase price of property or
services (other than property and services purchased, and expense accruals and
deferred compensation items arising, in the ordinary course of business); (c)
all obligations of such Person evidenced by notes, bonds, debentures,
mandatorily redeemable preferred stock, or other similar instruments (other than
performance, surety, and appeals bonds arising in the ordinary course of
business); (d) all payment obligations created or arising under any
11
conditional sale, deferred price, or other title retention agreement with
respect to property acquired by such Person (unless the rights and remedies of
the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property); (e) any Capital Lease Obligation of such
Person; (f) all reimbursement, payment, or similar obligations, contingent or
otherwise, of such Person under acceptance, letter of credit, or similar
facilities (other than letters of credit in support of trade obligations or
incurred in connection with public liability insurance, workers' compensation,
unemployment insurance, old-age pensions, and other social security benefits
other than in respect of employee benefit plans subject to ERISA); (g) all
obligations of such Person, contingent or otherwise, under any guarantee by such
Person of the obligations of another Person of the type referred to in clauses
(a) through (f) above; and (h) all obligations referred to in clauses (a)
through (f) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any mortgage or
security interest in property (including without limitation accounts, contract
rights, and general intangibles) owned by such Person and as to which such
Person has not assumed or become liable for the payment of such obligations
other than to the extent of the property subject to such mortgage or security
interest; PROVIDED, HOWEVER, that Indebtedness of the type referred to in
clauses (g) and (h) above shall be included within the definition of
"Indebtedness" only to the extent of the least of: (i) the amount of the
underlying Indebtedness referred to in the applicable clause (a) through (f)
above; (ii) in the case of clause (g), the limit on recoveries, if any, from
such Person under obligations of the type referred to in clause (g) above; and
(iii) in the case of clause (h), the aggregate value (as determined in good
faith by the board of directors or similar governing body of such Person) of the
property of such Person subject to such mortgage or security interest.
INDENTURE:
The term "Indenture" means this Indenture, as this Indenture may be
amended, supplemented, or otherwise modified from time to time, including, for
all purposes of this Indenture and any indenture supplemental hereto, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Indenture and any such supplemental indenture, respectively. The term
"Indenture" also includes the terms of particular series of Securities
established in accordance with Section 2.01.
INTEREST:
The term "interest," (i) when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest which accrues from and after and is payable after Maturity and (ii)
when used with respect to any Security, means the amount of all interest
accruing on such Security, including any default interest and any interest that
would have accrued after any Event of Default but for the occurrence of such
Event of Default, whether or not a claim for such interest would be otherwise
allowable under applicable law.
12
INTEREST PAYMENT DATE:
The term "Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
MATERIAL ADVERSE EFFECT:
The term "Material Adverse Effect" means a material adverse effect
on the business, assets, financial condition or results of operations of the
Company (taken together with its Subsidiaries as a whole).
MATURITY:
The term "Maturity," when used with respect to any Security, means
the date on which the principal of that 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 otherwise.
NOTICE OF DEFAULT:
The term "Notice of Default" means a written notice of the kind set
forth in Section 8.01(a)(iv).
OFFICER'S CERTIFICATE:
The term "Officer's Certificate" means a certificate executed on
behalf of the Company by a Responsible Officer, and delivered to the Trustee.
OPINION OF COUNSEL:
The term "Opinion of Counsel" means an opinion in writing signed by
legal counsel, who, subject to any express provisions hereof, may be an employee
of or counsel for the Company or any Subsidiary, reasonably acceptable to the
Trustee.
ORIGINAL ISSUE DISCOUNT SECURITY:
The term "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 8.01(b).
OUTSTANDING:
The term "Outstanding" means, when used with reference to Securities
as of a particular time, all Securities theretofore issued by the Company and
authenticated and delivered by the Trustee under this Indenture, except: (a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation, (b) Securities for the payment or redemption of which
13
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 is acting 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, and
(c) Securities 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; PROVIDED,
HOWEVER, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that will be deemed to
be Outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 8.01(b), (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units will be
the U.S. dollar equivalent, determined in the manner contemplated by Section
2.01 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in clause (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor will be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee will be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned will 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:
The term "Paying Agent" means any Person authorized by the Company
to pay the principal of or any premium or interest on any Securities on behalf
of the Company.
PERSON:
The term "Person" means any individual, partnership, corporation,
limited liability company, joint stock company, business trust, trust,
unincorporated association, joint venture, or other entity, or government or
political subdivision or agency thereof.
PLACE OF PAYMENT:
The term "Place of Payment," when used with respect to the
Securities of any series, means the place or places specified for the payment of
the principal of and any premium and interest on the Securities of that series
as contemplated by Section 2.01.
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PREDECESSOR SECURITY:
The term "Predecessor Security," when used with respect to any
particular Security, means every previous Security evidencing all or a portion
of the same debt as that evidenced by such Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.07 in
exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will
be deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen
Security.
REDEMPTION DATE:
The term "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:
The term "Redemption Price," when used with respect to any Security
to be redeemed, means the price (including premium, if any) at which it is to be
redeemed pursuant to this Indenture.
REGULAR RECORD DATE:
The term "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 2.01.
RESPONSIBLE OFFICER:
The term "Responsible Officer," when used (a) with respect to the
Company, means the Chairman or any Vice Chairman of the Board of Directors, the
Chief Executive Officer, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary, or any Assistant Secretary of the Company
and (b) with respect to the Trustee, means the Chairman or any Vice Chairman of
the board of directors, the Chairman or any Vice Chairman of the executive
committee of the board of directors, the Chairman of the trust committee, the
President, any Vice President, any Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Senior Trust Officer, any Trust Officer or Assistant
Trust Officer, the Controller or any Assistant Controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above-designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
15
SECURITIES:
The term "Securities" has the meaning set forth in the first recital
of this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
SECURITY REGISTER AND SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have the
respective meanings set forth in Section 2.05.
SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 2.09.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any Security,
means the date specified in such Security as the fixed date on which the
principal of such Security or any installment of interest thereon is due and
payable.
SUBSIDIARY:
The term "Subsidiary" means, with respect to any Person, any
corporation, partnership, or other business entity of which, in the case of a
corporation, more than 50% of the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the
occurrence of any contingency), or, in the case of any partnership or other
legal entity, more than 50% of the ordinary equity capital interests, is at the
time directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries, or by one or more of such Person's
other Subsidiaries.
TRUST INDENTURE ACT:
The term "Trust Indenture Act" means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this instrument was
executed; PROVIDED, HOWEVER, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
TRUSTEE:
The term "Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the
16
applicable provisions of this Indenture, and thereafter "Trustee" will 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 will mean each Trustee with respect to Securities of that series.
U.S. GOVERNMENT OBLIGATION:
The term "U.S. Government Obligation" means (a) any security that is
(i) a direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof and (b) any 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 U.S. Government Obligation
specified in clause (a), which U.S. Government Obligation is held by such
custodian for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any such U.S.
Government Obligation, PROVIDED that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
VICE PRESIDENT:
The term "Vice President," when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
(b) The words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture as originally executed. 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 Articles V, VI, and IX are
defined in those Articles. Terms in the singular include the plural and terms in
the plural include the singular.
(c) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP.
ARTICLE II. THE SECURITIES.
SECTION 2.01. DESIGNATION AND AMOUNT OF SECURITIES.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
17
(b) The Securities may be issued in one or more series. There will
be established in or pursuant to a Board Resolution and, subject to Section
2.04, set forth or determined in the manner provided in an Officer's
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series: (i) the title of the Securities of
the series (which will distinguish the Securities of the series from Securities
of any other series); (ii) 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 the exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder); (iii) the Person to whom any interest on
a Security of the series will be payable, if other than 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; (iv) the date or dates
on which the principal of the Securities of the series is payable; (v) the rate
or rates at which the Securities of the series will bear interest, if any, the
date or dates from which such interest will accrue, the Interest Payment Dates
on which any such interest will be payable, and the Regular Record Date for any
interest payable on any Interest Payment Date; (vi) the place or places where
the principal of and any premium and interest on Securities of the series will
be payable; (vii) 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; (viii) the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any 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 will be
redeemed or purchased, in whole or in part, pursuant to such obligation; (ix) if
other than denominations of $1,000 and integral multiples thereof, the
denominations in which Securities of the series will be issuable; (x) the
currency, currencies, or currency units in which payment of the principal of and
any premium and interest on any Securities of the series will be payable if
other than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United States of
America for purposes of the definition of "Outstanding" in Section 1.01; (xi) if
the amount of payments of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, based
upon a formula, or in some other manner, the manner in which such amounts will
be determined; (xii) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies, or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made will be payable, and the periods within which and the terms and conditions
upon which such election is to be made; (xiii) if other than the principal
amount thereof, the portion of the principal amount of Securities of the series
which will be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 8.01(b); (xiv) if applicable, that the Securities of the
series will be subject to either or both of Defeasance or Covenant Defeasance as
provided in Article V, provided that no series of Securities that is convertible
into Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii) will be
subject to Defeasance pursuant to Section 5.02; (xv) if and as applicable, that
the Securities of the series will be issuable in whole or in part in the form of
18
one or more Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances other than
those set forth in Section 2.05 in which any such Global Security may be
transferred to, and registered and exchanged for Securities registered in the
name of, a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered; (xvi) the
terms and conditions, if any, pursuant to which the Securities are convertible
into Common Stock; (xvii) the terms and conditions, if any, pursuant to which
the Securities are convertible into or exchangeable for any other securities,
including (without limitation) securities of Persons other than the Company;
(xviii) if and as applicable, that the Securities of the series will be
subordinated and subject in right of payment to the prior payment of other
Indebtedness; and (xix) any other terms of, or provisions, covenants, rights or
other matters applicable to, the series (which terms, provisions, covenants,
rights or other matters will not be inconsistent with the provisions of this
Indenture, except as permitted by Section 10.01(e)).
(c) All Securities of any one series will be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to below and (subject to Section 2.04) set
forth or determined in the manner provided in the Officer's Certificate referred
to above or in any such indenture supplemental hereto.
(d) 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 will be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee concurrently with or prior to the delivery
of the Officer's Certificate setting forth the terms of the series.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
(a) The Securities of each series will be in substantially the form
set forth in or otherwise contemplated by the recitals to this Indenture, with
appropriate variations to reflect the specific terms of such series. 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 will be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee concurrently with or prior to the delivery of the Company Order
contemplated by Section 2.04 for the authentication and delivery of such
Securities.
(b) The definitive Securities will be printed, lithographed, or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustee's certificate of authentication will be in
substantially the form set forth in the recitals to this Indenture.
(d) Every Global Security authenticated and delivered hereunder will
bear a legend in substantially the form set forth in the recitals to this
Indenture.
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SECTION 2.03. DATE AND DENOMINATIONS.
Each Security will be dated the date of its authentication. The
Securities of each series will be issuable only in registered form without
coupons in such denominations as may be specified as contemplated by Section
2.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series will be issuable in
denominations of $1,000 and integral multiples thereof.
SECTION 2.04. EXECUTION, AUTHENTICATION AND DELIVERY OF SECURITIES.
(a) The Securities will be executed on behalf of the Company by the
Chairman or any Vice Chairman of the Board of Directors, the Chief Executive
Officer, the President, or any Vice President of the Company and attested by the
Treasurer, the Secretary, any Assistant Treasurer, or any Assistant Secretary of
the Company under its corporate seal. The signature of any of these officers on
the Securities may be manual or facsimile. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted, or
otherwise reproduced on the Securities.
(b) Only such Securities bearing the Trustee's certificate of
authentication, signed manually by the Trustee, will be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such execution of
the certificate of authentication by the Trustee upon any Securities executed by
the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 2.08, for all
purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits
of this Indenture.
(c) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company will 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.
(d) 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, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order will authenticate and deliver such
Securities as provided in this Indenture and not otherwise. If the terms or form
of the Securities of the series have been established in or pursuant to one or
more Board Resolutions as permitted by Sections 2.01 and 2.02, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee will be entitled to
receive, and (subject to Section 9.01) will be fully protected in relying upon,
an Opinion of Counsel stating (i) if the terms of such Securities have been
established by or pursuant to a Board Resolution as permitted by Section 2.01,
that such terms have been established in conformity with the provisions of this
Indenture, (ii) if the form of such Securities has been
20
established by or pursuant to a Board Resolution as permitted by Section 2.02,
that such form has been established in conformity with the provisions of this
Indenture, and (iii) 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
binding obligations of the Company enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws relating to or affecting creditors'
rights and by general principles of equity.
(e) Notwithstanding the provisions of Sections 2.01 and 2.04(d), if
all Securities of a series are not to be originally issued at one time, it will
not be necessary to deliver the Officer's Certificate otherwise required
pursuant to Section 2.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to Section 2.04(d) at 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.
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company will cause to be kept at the Corporate Trust Office
a register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company will provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
(b) 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 will execute, and the Trustee will 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 and tenor.
(c) At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company will execute, and the
Trustee will authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of
transfer or exchange will (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument or instruments of transfer,
in form reasonably satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing. No
service charge will 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 2.06, 3.05, or 10.06 not
21
involving any transfer. The Company will 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 calendar days before the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
3.02(c) 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, in the case of any Securities to be redeemed in
part, the portion thereof not being redeemed.
(e) All Securities issued upon any registration of transfer or
exchange of Securities will 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.
(f) Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(i) such Depositary (A) notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) ceases to be a clearing
agency registered under the Exchange Act, (ii) the Company executes and delivers
to the Trustee a Company Order that such Global Security shall be so
transferable, registrable, and exchangeable, and such transfers shall be
registrable, (iii) there shall have occurred and be continuing an Event of
Default with respect to the Securities evidenced by such Global Security, or
(iv) there shall exist such other circumstances, if any, as have been specified
for this purpose as contemplated by Section 2.01. Notwithstanding any other
provision in this Indenture, a Global Security to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Securities registered only in
the name or names of, such Person or Persons as the Depositary for such Global
Security shall have directed and no transfer thereof other than such a transfer
may be registered. Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of this Section 2.05(f) shall apply,
whether pursuant to this Section 2.05, Section 2.06, 2.07, 3.05, or 10.06 or
otherwise, will be authenticated and delivered in the form of, and will be, a
Global Security.
SECTION 2.06. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and register, and upon Company Order the Trustee will
authenticate and deliver, temporary Securities (printed, lithographed, or
typewritten) of any authorized denomination, and substantially in the form of
the definitive Securities but with such omissions, insertions, and variations as
may be appropriate for temporary Securities, all as may be determined by the
officers of the Company executing such Securities as evidenced by their
execution of such Securities; PROVIDED, HOWEVER, that the Company will use
reasonable efforts to have definitive Securities of that series available at the
times of any issuance of Securities under this Indenture. Every temporary
Security will be executed and registered by the Company and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities. The Company will execute and
register and furnish definitive Securities
22
of such series as soon as practicable and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor at the office
or agency of the Company in the Place of Payment for that series, and the
Trustee will authenticate and deliver in exchange for such temporary Securities
of such series one or more definitive Securities of the same series, of any
authorized denominations, and of a like aggregate principal amount and tenor.
Such exchange will be made by the Company at its own expense and without any
charge to the Holder therefor. Until so exchanged, the temporary Securities of
any series authenticated and delivered hereunder will be entitled to the same
benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.
SECTION 2.07. MUTILATED, DESTROYED, LOST, AND STOLEN SECURITIES.
(a) If any mutilated Security is surrendered to the Trustee, the
Company will execute and the Trustee will 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.
(b) 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 will execute and the Trustee will 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.
(c) 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.
(d) Upon the issuance of any new Security under this Section 2.07,
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.
(e) Every new Security of any series issued pursuant to this Section
2.07 in exchange for any mutilated Security or in lieu of any destroyed, lost,
or stolen Security will constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost, or stolen
Security shall be at any time enforceable by anyone, and will be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost, or stolen Securities.
23
SECTION 2.08. CANCELLATION OF SURRENDERED SECURITIES.
All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any sinking fund payment will, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and will be promptly cancelled 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 may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered will be promptly
cancelled by the Trustee. No Securities will be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section 2.08, except
as expressly permitted by this Indenture. The Trustee shall destroy all
cancelled Securities held by the Trustee and shall send a certificate of such
destruction to the Company.
SECTION 2.09. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Except as otherwise provided as contemplated by Section 2.01
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 will 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.
(b) 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") will forthwith cease to be payable to the
Holder on the relevant regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company together with interest
thereon (to the extent permitted by law) at the rate of interest applicable to
such Security, at its election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any Defaulted
Interest (and interest thereon, if any) 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 will be fixed in the following
manner. The Company will notify the Trustee in writing of the amount of
Defaulted Interest (and interest thereon, if any) proposed to be paid on
each Security of such series and the date of the proposed payment, and at
the same time the Company will deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest (and interest thereon, if any) or will 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
(and interest thereon, if any) as in this clause (i) provided. Thereupon
the Trustee will fix a Special Record Date for the payment of such
Defaulted Interest (and interest thereon, if any) which will be not more
than 15 calendar days and not less than 10 calendar days prior to the date
of the proposed payment and not less than 10 calendar days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
will promptly notify the Company of such Special Record Date
24
and, in the name and at the expense of the Company, will 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 calendar days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest (and
interest thereon, if any) and the Special Record Date therefor having been
so mailed, such Defaulted Interest will 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 will no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest
(and interest thereon, if any) 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
(ii), such manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section 2.09, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security will carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.10. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee, and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 2.09) any interest on such Security and for all other
purposes whatsoever, whether or not such Security shall be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee will be
affected by notice to the contrary.
SECTION 2.11. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 2.01 for
Securities of any series, interest on the Securities of each series will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 2.12. CUSIP NUMBERS.
The Company in issuing any series of the Securities may use CUSIP
numbers, if then generally in use, and thereafter with respect to such series,
the Trustee may use such numbers in any notice of redemption or exchange with
respect to such series PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption
25
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III. REDEMPTION OF SECURITIES.
SECTION 3.01. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity will be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
(a) The election of the Company to redeem any Securities will 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 will, at
least 60 calendar 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 and of the principal amount of Securities of such series 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 will furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the
election of the Company will be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and will
be irrevocable. Notice of redemption will be given by mail, first-class postage
prepaid, not less than 30 nor more than 60 calendar days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register. All notices of redemption will state (i) the Redemption
Date, (ii) the Redemption Price, (iii) if less than all the Outstanding
Securities of any series 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, (iv) 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, (v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, (vi) that the redemption is for
a sinking fund, if such is the case, and (vii) the specific provision of this
Indenture pursuant to which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed will be selected not more
than 60 calendar days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee may deem fair and appropriate and 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
26
for Securities of that series. The Trustee will 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.
(d) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities will 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 3.03. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. on any Redemption Date specified in the notice
of redemption given as provided in Section 3.02, the Company will 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 6.03) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
of the Securities that are to be redeemed on that date.
SECTION 3.04. SECURITIES PAYABLE ON REDEMPTION DATE.
(a) Notice of redemption having been given as aforesaid, the
Securities so to be redeemed will, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company defaults in the payment of the Redemption Price and accrued
interest) such Securities will cease to accrue interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security will
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 2.01, 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 in accordance with their terms
and the provisions of Section 2.09.
(b) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium will, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 3.05. SECURITIES REDEEMED IN PART.
Any Security that is to be redeemed only in part will 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 will execute, and the Trustee will
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.
27
Article IV. Sinking Funds.
SECTION 4.01. APPLICABILITY OF ARTICLE.
The provisions of this Article IV will be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 2.01 for Securities of such series. 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 amount of any sinking
fund payment may be subject to reduction as provided in Section 4.02. Each
sinking fund payment with respect to Securities of a particular series will be
applied to the redemption of Securities of such series as provided for by the
terms of Securities of such series.
SECTION 4.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company 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 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, provided that such Securities have not been previously so credited. Such
Securities will be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment will be reduced
accordingly.
SECTION 4.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 calendar days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, that is to be satisfied by payment of cash and the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 4.02 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 calendar days before each such
sinking fund payment date, the Trustee will select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 3.02(c)
and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.02(b). Such notice
having been duly given, the redemption of such Securities will be made upon the
terms and in the manner stated in Sections 3.04 and 3.05.
28
ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE.
SECTION 5.01. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option by Board Resolution at any
time, to have either Section 5.02 or Section 5.03 applied to the Outstanding
Securities of any series designated pursuant to Section 2.01 as being defeasible
pursuant to this Article V (hereinafter called "Defeasible Series"), upon
compliance with the conditions set forth below in this Article V, PROVIDED that
Section 5.02 will not apply to any series of Securities that is convertible into
Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii).
SECTION 5.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 5.01
to have this Section 5.02 applied to the Outstanding Securities of any
Defeasible Series and subject to the proviso to Section 5.01, the Company will
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section 5.02 on and
after the date the conditions set forth in Section 5.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company will 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 the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging the same),
subject to the following which will survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Securities of such series to
receive, solely from the trust fund described in Section 5.04 and as more fully
set forth in Section 5.04, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(b) the Company's obligations with respect to the Securities of such series
under Sections 2.05, 2.06, 2.07, 6.02, 6.03, and 10.06, (c) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder, and (d) this Article V.
Subject to compliance with this Article V, the Company may exercise its option
provided in Section 5.01 to have this Section 5.02 applied to the Outstanding
Securities of any Defeasible Series notwithstanding the prior exercise of its
option provided in Section 5.01 to have Section 5.03 applied to the Outstanding
Securities of such series.
SECTION 5.03. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 5.01
to have this Section 5.03 applied to the Outstanding Securities of any
Defeasible Series, (a) the Company will be released from its obligations under
Sections 6.04 through 6.07, inclusive, Section 11.01, and the provisions of any
indenture supplemental hereto specified in such supplemental indenture, and (b)
the occurrence of any event specified in Sections 8.01(a)(iii), 8.01(a)(iv)
(with respect to any of Sections 6.04 through 6.07, inclusive, Section 11.01,
and the provisions of any indenture supplemental hereto specified in such
supplemental indenture), 8.01(a)(v), and 8.01(a)(viii) will be deemed not to be
or result in an Event of Default, in each case with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth
29
in Section 5.04 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that the Company may omit to comply
with and will have no liability in respect of any term, condition, or limitation
set forth in any such specified Section (to the extent specified above in the
case of Section 8.01(a)(iv) or in any such specified provision of such
supplemental indenture), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or provision or by reason of any
reference in any such Section or provision to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series will be unaffected thereby.
SECTION 5.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following will be the conditions to application of either
Section 5.02 or Section 5.03 to the Outstanding Securities of any Defeasible
Series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 9.08 and agrees to comply with the
provisions of this Article V applicable to it) as trust funds in trust for
the benefit of the Holders of Outstanding Securities of such series (i)
money in an amount, or (ii) U.S. Government Obligations that through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, without reinvestment, not later
than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, in each case sufficient to pay and discharge,
and which will be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and
interest on the Securities of such series on the respective Stated
Maturities or on any earlier date or dates on which the Securities of such
series shall be subject to redemption and the Company shall have given the
Trustee irrevocable instructions satisfactory to the Trustee to give
notice to the Holders of the redemption of the Securities of such series,
all in accordance with the terms of this Indenture and the Securities of
such series.
(b) In the case of an election under Section 5.02, the Company shall
have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this 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 gain or loss for federal income tax purposes as a result of the
deposit, Defeasance, and discharge to be effected with respect to the
Securities of such series and will be subject to federal income tax on the
same amount, in the same manner, and at the same times as would be the
case if such deposit, Defeasance, and discharge were not to occur.
(c) In the case of an election under Section 5.03, the Company shall
have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that the Holders of
the Outstanding Securities of such series will not recognize gain or loss
for federal income tax purposes as a result of
30
the deposit and Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to federal income tax on the
same amount, in the same manner, and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted solely as a result
of such deposit.
(e) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 8.01(a)(vi) and (vii), at
any time on or prior to the 90th calendar day after the date of such
deposit (it being understood that this condition will not be deemed
satisfied until after such 90th calendar day).
(f) Such Defeasance or Covenant Defeasance will not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(g) Such Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(h) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(i) Such Defeasance or Covenant Defeasance will not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust will be qualified under such Act or exempt from regulation
thereunder.
SECTION 5.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to the provisions of Section 6.03(e), all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section 5.05
and Section 5.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 5.04 in respect of the
Securities of any Defeasible Series will be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
31
(b) The Company will pay and indemnify the Trustee against any tax,
fee, or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 5.04 or the principal and interest
received in respect thereof other than any such tax, fee, or other charge that
by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article V to the contrary, the
Trustee will deliver or pay to the Company from time to time upon a Company
Request any money or U.S. Government Obligations held by it as provided in
Section 5.04 with respect to Securities of any Defeasible Series that are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
SECTION 5.06. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article V 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
will be revived and reinstated as though no deposit had occurred pursuant to
this Article V with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 5.05 with respect to Securities of such series in accordance with
this Article V; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company will be subrogated to the
rights of the Holders of Securities of such series to receive such payment from
the money so held in trust.
ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY.
SECTION 6.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST ON SECURITIES.
The Company, for the benefit of each series of Securities, will duly
and punctually pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of such Securities and
this Indenture.
SECTION 6.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices, and demands.
32
(b) The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission will in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 6.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
(a) 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 or any premium 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 any premium and 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 of its action or
failure so to act.
(b) 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 or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
(c) 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 will agree with the Trustee, subject to
the provisions of this Section 6.03, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
(d) 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 will be released from all further liability with respect to
such money.
(e) Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, or interest has become due and payable
will be paid to the Company upon a Company Request (or, if then held by the
Company, will be discharged from such trust); and the Holder of such Security
will thereafter, as an unsecured general creditor, look only to the Company for
payment thereof,
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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, will thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than 30 calendar
days from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 6.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments, and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or upon the income, profits, or property of the Company or any
Subsidiary of the Company, and (b) all lawful claims for labor, materials, and
supplies, in each case which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary of the Company and might have a
Material Adverse Effect; PROVIDED, HOWEVER, that the Company will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge, or claim the amount, applicability, or validity of which is
being contested in good faith by appropriate proceedings.
SECTION 6.05. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct
of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair, and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments, and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section 6.05 will prevent the Company
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary of the Company and will not
result in a Material Adverse Effect.
SECTION 6.06. EXISTENCE.
Subject to Article XI, the Company will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights (charter and statutory), and
franchises; PROVIDED, HOWEVER, that no Subsidiary of the Company will be
required to preserve its existence, and neither the Company nor any Subsidiary
of the Company will be required to preserve any such right or franchise, if the
Board of Directors determines that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof will not result in a Material Adverse Effect.
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SECTION 6.07. COMPLIANCE WITH LAWS.
The Company will, and will cause each of its Subsidiaries to, comply
with all applicable federal, state, local, or foreign laws, rules, regulations,
or ordinances, including without limitation such laws, rules, regulations, or
ordinances relating to pension, environmental, employee, and tax matters, in
each case to the extent that the failure so to comply would have a Material
Adverse Effect.
SECTION 6.08. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 calendar days
after the end of each fiscal year of the Company ending after the date hereof,
an Officer's Certificate signed by the principal executive officer, principal
financial officer, or principal accounting officer of the Company stating
whether or not to the knowledge of such person after due inquiry the Company is
in default in the performance and observance of any of the terms, provisions,
and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company is in default,
specifying all such defaults and the nature and status thereof of which such
person may have such knowledge.
SECTION 6.09. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision, or condition set forth in Sections 6.04 through 6.07,
inclusive, and the provisions of any supplemental indenture specified in such
supplemental indenture, with respect to the Securities of any series if the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, or condition,
but no such waiver will 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 will remain in full force and
effect.
ARTICLE VII. SECURITIES HOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE.
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee (a)
semi-annually, not more than 15 calendar days after the applicable Regular
Record Date, a list for each series of Securities, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of such Regular Record Date and (b) at such other times as the
Trustee may request in writing, within 30 calendar 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 calendar days prior to the time such list is furnished; EXCLUDING
from any such list names and addresses received by the Trustee in its capacity
as Security Registrar.
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SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee will preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of the 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, will 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 will be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE.
The Trustee will transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. A
copy of each such report will, 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 Commission, and with the Company. The Company will promptly
notify the Trustee when any Securities are listed on any stock exchange or of
any delisting thereof.
SECTION 7.04. REPORTS BY COMPANY.
The Company will 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 thereto; PROVIDED that any such
information, documents, or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act will be filed with the
Trustee within 15 calendar days after the same is so required to be filed with
the Commission.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely exclusively on Officers' Certificates).
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Article VIII. Default.
SECTION 8.01. EVENT OF DEFAULT.
(a) "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 may 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):
(i) default in the payment of any interest on any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 calendar days;
(ii) default in the payment of the principal of (or premium,
if any, on) any Security of that series when it becomes due and payable;
(iii) default in the making of any sinking fund payment when
and as due by the terms of a Security of that series;
(iv) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty, a default in the performance or breach of which is elsewhere in
this Section 8.01 specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such default or
breach for a period of 60 calendar 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;
(v) any nonpayment at maturity or other default is made under
any agreement or instrument relating to any other Indebtedness of the
Company (the unpaid principal amount of which is not less than $25.0
million), and, in any such case, such default (A) continues beyond any
period of grace provided with respect thereto and (B) results in such
Indebtedness becoming due prior to its stated maturity or occurs at the
final maturity of such Indebtedness; PROVIDED, HOWEVER, that, subject to
the provisions of Section 9.01 and 8.08, the Trustee will not be deemed to
have knowledge of such nonpayment or other default unless either (1) a
Responsible Officer of the Trustee has actual knowledge of nonpayment or
other default or (2) the Trustee has received written notice thereof from
the Company, from any Holder, from the holder of any such Indebtedness or
from the trustee under the agreement or instrument relating to such
Indebtedness;
37
(vi) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization, or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator, or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive calendar days;
(vii) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization, or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief with respect to the Company under any applicable
federal or state bankruptcy, insolvency, reorganization, or other similar
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator, or other similar official of the Company
or of any substantial part of its property pursuant to any such law, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(viii) any other Event of Default provided with respect to
Securities of that series.
(b) If an Event of Default (other than an Event of Default arising
under Section 8.01(a)(vi) or (vii)) with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every 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) will become immediately due and payable. If an Event of Default under
Section 8.01(a)(vi) or (vii) occurs, then the principal of, premium, if any, and
accrued interest on the Securities shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
(c) 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
38
due has been obtained by the Trustee as hereinafter in this Article VIII
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 (i) 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 and its agents and counsel and (ii) 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
8.01(d). No such rescission will affect any subsequent default or impair any
right consequent thereon.
(d) The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its
consequences, except a default (i) in the payment of the principal of or any
premium or interest on any Security of such series or (ii) in respect of a
covenant or provision hereof which under Article X cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such default will cease to exist, and any Event
of Default arising therefrom will be deemed to have been cured, for every
purpose of this Indenture, but no such waiver will extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 8.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE ON
SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL; SUITS
FOR ENFORCEMENT BY TRUSTEE.
(a) The Company covenants that if (i) default is made in the payment
of any interest on any Security when such interest becomes due and payable and
such default continues for a period of 30 calendar days or (ii) default is made
in the payment of the principal of (or premium, if any, on) any Security when it
becomes due and payable, 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 any premium and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as will be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel. If the
Company shall fail forthwith to pay such amounts upon such demand, the Trustee,
in its own name and as trustee of an express trust, shall be entitled and
empowered to institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company and collect in the manner provided by law out
of the property of the Company, wherever situated, the moneys adjudged or
decreed to be payable.
39
(b) 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.
(c) In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee will 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 will be authorized to collect and receive
any money 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 consents 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 and its
agents and counsel, and any other amounts due the Trustee under Section 9.06.
(d) No provision of this Indenture will 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; PROVIDED,
HOWEVER, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
(e) 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 will be brought in
its own name as trustee of an express trust, and any recovery of judgment will,
after provision for the payment of the reasonable compensation, expenses,
disbursements, and advances of the Trustee and 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 8.03. APPLICATION OF MONEY COLLECTED BY TRUSTEE.
Any money collected by the Trustee pursuant to this Article VIII
will 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 any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 9.06;
40
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the
Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, except to the extent
that the Securities of a series are by their express
terms subordinated and subject in right of payment to
the prior payment of other indebtedness, according to
the amounts due and payable on such Securities for
principal and any premium and interest, respectively;
and
THIRD: To the Company, its successors or assigns, or to such
other Person that may be lawfully entitled to receive
the same.
SECTION 8.04. LIMITATION ON SUITS BY HOLDERS OF SECURITIES.
No Holder of any Security of any series will 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 (a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder, (c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses, and liabilities to be incurred
in compliance with such request, (d) the Trustee for 60 calendar days after its
receipt of such notice, request, and offer of indemnity has failed to institute
any such proceeding, and (e) 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 will 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 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 8.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION IN
EXERCISE OF RIGHTS NOT A WAIVER OF EVENT OF DEFAULT.
(a) Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost, or stolen Securities in the last
paragraph of Section 2.07, 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 will, 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, will not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
41
(b) 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
will 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
VIII 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 8.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING
SECURITIES TO DIRECT TRUSTEE.
The Holders of a majority in principal amount of the Outstanding
Securities of any series will 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 (a) such direction will not be in
conflict with any rule of law or with this Indenture and (b) the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 8.07. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN SUITS
UNDER THE INDENTURE OR AGAINST THE TRUSTEE.
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 8.07 nor the Trust Indenture
Act will be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company.
SECTION 8.08. NOTICE OF DEFAULTS.
If a Default occurs hereunder with respect to Securities of any
series, the Trustee will give the Holders of Securities of such series notice of
such Default as and to the extent provided by the Trust Indenture Act; PROVIDED,
HOWEVER, that in the case of any Default of the character specified in Section
8.01(a)(iv) with respect to Securities of such series no such notice to Holders
will be given until at least 30 calendar days after the occurrence thereof. The
Company will give the Trustee notice of any uncured Event of Default within 10
days after any Responsible Officer of the Company becomes aware of or receives
actual notice of such Event of Default.
SECTION 8.09. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM, AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security will have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
2.09) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the
42
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights may not be impaired without the consent of such Holder.
SECTION 8.10. 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 will
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue
as though no such proceeding had been instituted.
SECTION 8.11. TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the
Subsidiaries (or any other obligor upon the Securities), their creditors or
their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claim and to
distribute the same, and any custodian in any such judicial proceedings 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 to it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee hereunder. Nothing herein
contained 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.
ARTICLE IX. CONCERNING THE TRUSTEE.
SECTION 9.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee will be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture will 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. 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 will be
subject to the provisions of this Section 9.01.
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SECTION 9.02. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 9.01: (a) the Trustee may
conclusively rely and will be protected in acting or refraining from acting
upon, whether in its original or facsimile form, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness, or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties; (b) any request or direction of the Company
mentioned herein will be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board will 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 Officer's Certificate; (d) the Trustee may consult with counsel of
its selection and the advice of such counsel or any Opinion of Counsel will 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 will 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 will 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 will be entitled to examine the
books, records, and premises of the Company, personally or by agent or attorney,
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; (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
will 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 liable for any action taken, suffered, or omitted to be taken by it
in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 9.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, may be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
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 will not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
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SECTION 9.04. 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 9.07 and 9.12, 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 9.05. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required herein or by law. The Trustee
will be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 9.06. COMPENSATION AND REIMBURSEMENT.
The Company will (a) pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as the parties shall
agree from time to time (which compensation will not be limited to any provision
of law in regard to the compensation of a trustee of an express trust); (b)
except as otherwise expressly provided herein, reimburse the Trustee upon its
request for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of agents and
counsel), except any such expense, disbursement, or advance as may be
attributable to its negligence or bad faith; and (c) indemnify each of the
Trustee and any predecessor Trustee for, and hold the Trustee harmless against,
any and all loss, liability, claim, or expense incurred without negligence or
bad faith on its part arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 8.01(a)(vi) or Section
8.01(a)(vii), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for such services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
SECTION 9.07. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or acquires a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee will 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.
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SECTION 9.08. CORPORATE TRUSTEE REQUIRED ELIGIBILITY.
There will at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which will 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 $100,000,000 and its Corporate Trust
Office or principal office in New York City, or any other major city in the
United States that is acceptable to the Company. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining state or federal authority, then for the purposes
of this Section 9.08, 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 9.08, it will resign
immediately in the manner and with the effect hereinafter specified in this
Article IX.
SECTION 9.09. 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 IX will become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 9.10.
(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 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee may
at the expense of the Company 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, (i) the Trustee fails to comply with Section
9.07 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, (ii) the Trustee
ceases to be eligible under Section 9.08 and fails to resign after written
request therefor by the Company or by any such Holder, or (iii) the Trustee
becomes incapable of acting or is adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property is appointed or any public officer takes
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation, or liquidation, then, in any such case, (A) the
Company by a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 8.07, 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 all Securities and the appointment of a
successor Trustee or Trustees.
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(e) If the Trustee resigns, is removed, or becomes incapable of
acting, or if a vacancy occurs in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company by a Board
Resolution will 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 will be only one Trustee with
respect to the Securities of any particular series) and will comply with the
applicable requirements of Section 9.10. 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 any series is 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 will, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 9.10,
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 9.10, 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, at the expense of the Company, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company will 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
13.03. Each notice will include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
SECTION 9.10. 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 will
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 will become effective and such successor Trustee,
without any further act, deed, or conveyance, will 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 will, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, and duties of the retiring Trustee and
will duly assign, transfer, and deliver to such Trustee all property and money
held by such retiring Trustee hereunder.
(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 will execute and deliver an indenture supplemental hereto
wherein such successor Trustee will accept such appointment and which (i) will
contain such provisions as may 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
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Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) will contain such provisions
as may 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 will
continue to be vested in the retiring Trustee, and (iii) will add to or change
any of the provisions of this Indenture as may 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 will
constitute such Trustees co-trustees of the same trust and that each such
Trustee will be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustees and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee will become effective to the extent provided
therein and each such successor Trustee, without any further act, deed, or
conveyance, will 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 will 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 will
execute any and all instruments reasonably required to more fully and certainly
vest in and confirm to such successor Trustee all applicable rights, powers, and
trusts referred to in the preceding paragraphs of this Section 9.10.
(d) No successor Trustee will accept its appointment unless at the
time of such acceptance such successor Trustee is qualified and eligible under
this Article IX.
SECTION 9.11. 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 may be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, will be the successor of the Trustee hereunder, provided such
corporation is otherwise qualified and eligible under this Article IX, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion, or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 9.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee is or becomes a creditor of the Company (or
any other obligor upon the Securities), the Trustee will be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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SECTION 9.13. APPOINTMENT OF AUTHENTICATING AGENT.
(a) The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which will be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer, or partial
redemption thereof or pursuant to Section 2.07, and Securities so authenticated
will be entitled to the benefits of this Indenture and will 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 will 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 under the laws of the United
States of America, any state thereof, or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not 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 9.13,
the combined capital and surplus of such Authenticating Agent will 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 the provisions of this Section 9.13, such
Authenticating Agent will resign immediately in the manner and with the effect
specified in this Section 9.13.
(b) 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
may be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, will continue to be an
Authenticating Agent, provided such corporation is otherwise eligible under this
Section 9.13, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent 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 this Section 9.13, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and will 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 hereunder will
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 will be appointed unless eligible under the
provisions of this Section 9.13.
49
(d) The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section 9.13.
(e) If an appointment with respect to one or more series of
Securities is made pursuant to this Section 9.13, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative form of certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
______________, as Trustee
Dated:_______________ By:____________________________
As Authenticating Agent
By:____________________________
Authorized Signatory
SECTION 9.14. TRUSTEE'S APPLICATION FOR INSTRUCTION FROM THE COMPANY.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. In the case of any proposed action or omission expressly authorized
by this Indenture, the Trustee shall not be liable for any action taken by, or
omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have consented
in writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to be
taken or omitted. In the case of any proposed action or omission that is not
expressly authorized by this Indenture, the Trustee shall not take or refrain
from taking any action unless prior to taking or refraining from taking any such
action, the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
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ARTICLE X. SUPPLEMENTAL INDENTURES AND CERTAIN
Actions.
SECTION 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE ENTERED INTO
WITHOUT CONSENT OF HOLDERS.
Without the consent of or notice to any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities, all to the extent otherwise permitted
hereunder;
(b) 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;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this Indenture to
such extent as may 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;
(e) 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) will 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) will become effective only when there is no such
Security Outstanding;
(f) to establish the terms or form of Securities of any series as
permitted by Sections 2.01 and 2.02;
(g) 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 may be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 9.10; or
51
(h) 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 (h) will not adversely affect the interests of the Holders
of Securities of any series in any material respect.
SECTION 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF AT
LEAST A MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING SECURITIES.
(a) With the consent of the Holders of 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 will, without the consent of the Holder of
each Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of principal of 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, 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
8.01(b), or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of
which is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(iii) modify any of the provisions of this Section 10.02, Section
8.01(d) or Section 6.09, except to increase the percentage in principal
amount of Holders required under any such Section 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 (iii) will 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 10.02
and Section 6.09, or the deletion of this proviso, in accordance with the
requirements of Sections 9.10 and 10.01(g).
(b) 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
52
such series with respect to such covenant or other provision, will be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series.
(c) It will not be necessary for any Act of Holders under this
Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it will be sufficient if such Act approves the substance thereof.
SECTION 10.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article X or the modifications thereby
of the trusts created by this Indenture, the Trustee will be entitled to
receive, and (subject to Section 9.01) will be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but will 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 10.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
X, this Indenture will be modified in accordance therewith, and such
supplemental indenture will form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder will be bound thereby.
SECTION 10.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article X
will conform to the requirements of the Trust Indenture Act.
SECTION 10.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article X may, and will
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.
ARTICLE XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER.
SECTION 11.01. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES PERMITTED ONLY
ON CERTAIN TERMS.
(a) The Company shall not consolidate with or merge with or into any
other Person, or transfer (by lease, assignment, sale, or otherwise) all or
substantially all of its
53
properties and assets to another Person unless (i) either (A) the Company shall
be the continuing or surviving Person in such a consolidation or merger or (B)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company are transferred (the Company or such other
Person being referred to as the "Surviving Person") shall be a corporation
organized and validly existing under the laws of the United States, any state
thereof, or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, all of the obligations of the Company under the
Securities and the Indenture, (ii) immediately after the transaction and the
incurrence or anticipated incurrence of any Indebtedness to be incurred in
connection therewith, no Default will exist, and (iii) an Officer's Certificate
has been delivered to the Trustee to the effect that the conditions set forth in
the preceding clauses (i) and (ii) have been satisfied and an Opinion of Counsel
(from a counsel who shall not be an employee of the Company) has been delivered
to the Trustee to the effect that the conditions set forth in the preceding
clause (i) have been satisfied.
(b) The Surviving Person will succeed to and be substituted for the
Company with the same effect as if it had been named herein as a party hereto,
and thereafter the predecessor corporation will be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 12.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will upon a Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense the Company, will execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when: (a) either (i) all Securities theretofore
authenticated and delivered (other than (A) Securities which have been
destroyed, lost, or stolen and which have been replaced or paid as provided in
Section 2.07 and (B) Securities for the payment of which 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 6.03) have been delivered to the Trustee for cancellation or (ii) all
such Securities not theretofore delivered to the Trustee for cancellation (A)
have become due and payable, (B) will become due and payable at their Stated
Maturity within one year, or (C) 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 clause (A), (B), or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; (b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and (c) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.
54
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06, the obligations of
the Trustee to any Authenticating Agent under Section 9.13, and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section 12.01, the obligations of the Trustee under Sections 6.03(e) and
12.02, will survive.
SECTION 12.02. APPLICATION OF TRUST MONEY.
Subject to provisions of Section 6.03(e), all money deposited with
the Trustee pursuant to Section 12.01 will 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 any premium and interest for the payment
of which such money has been deposited with the Trustee; and such money shall be
segregated from other funds to the extent required by law.
ARTICLE XIII. MISCELLANEOUS PROVISIONS.
SECTION 13.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises, and agreements in this
Indenture contained by or on behalf of the Company will bind its successors and
assigns, whether so expressed or not.
SECTION 13.02. SERVICE OF REQUIRED NOTICE TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver, Act of Holders, or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with (a) the Trustee
by any Holder or by the Company will 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: _______________ or (b) the Company by the
Trustee or by any Holder will 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 111 S.W. Fifth Avenue,
Portland,Oregon 97204 (marked for the attention of both the Chief Financial
Officer and the General Counsel) or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 13.03. SERVICE OF REQUIRED NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder will affect the
sufficiency of such notice with respect to other Holders. Where
55
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 will be the equivalent of such notice. Waivers of
notice by Holders will be filed with the Trustee, but such filing will not be a
condition precedent to the validity of any action taken in reliance upon such
waiver. In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as may be made with the approval of the Trustee will
constitute a sufficient notification for every purpose hereunder.
SECTION 13.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
This Indenture and the Securities will be deemed to be a contract
made under the laws of the State of New York, and for all purposes will be
construed in accordance with the laws of said State without giving effect to
principles of conflict of laws of such State.
SECTION 13.05. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company will
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion will be given in the
form of an Officer's Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and will comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
SECTION 13.06. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. 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 13.07. PAYMENTS DUE ON NON-BUSINESS DAYS.
In any case where any Interest Payment Date, Redemption 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 (other than a provision of the Securities of any series which
specifically states that such provision will apply in lieu of this Section
13.07)) payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment, without additional interest, with the
same force and effect as if made on the
56
applicable Interest Payment Date or Redemption Date or at the applicable Stated
Maturity, as the case may be.
SECTION 13.08. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO CONTROL.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed on any Person by Sections 310 through 317, inclusive, of
the Trust Indenture Act (including provisions automatically deemed included in
this Indenture pursuant to the Trust Indenture Act unless this Indenture
provides that such provisions are excluded), which are deemed to be a part of
and govern this Indenture, whether or not contained herein, then such imposed
duties will control.
SECTION 13.09. INVALIDITY OF PARTICULAR PROVISIONS.
In case any one or more of the provisions contained in this
Indenture or in the Securities is for any reason held to be invalid, illegal, or
unenforceable in any respect, such validity, illegality, or enforceability will
not affect any other provision of this Indenture or of the Securities, but this
Indenture and such Securities will be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein or therein.
SECTION 13.10. INDENTURE MAY BE EXECUTED IN COUNTERPARTS.
This instrument may be executed in any number of counterparts, each
of which will be an original, but such counterparts will together constitute but
one and the same instrument.
SECTION 13.11. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver, or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action will 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 will be sufficient for any purpose of this
Indenture and (subject to Section 9.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 13.11.
(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 will also constitute sufficient proof of
his authority. The fact and date of
57
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 will be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver, or other Act of the Holder of any Security will bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange thereof 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.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver, or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities of such series. With regard to any record date set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date (or their duly appointed agents), and only such Persons, will
be entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder will be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph will prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any such
expiration date, any action identical to, or, at any time, contrary to or
different from, the action or purported action to which such expiration date
relates, in which event the Company may set a record date in respect thereof
pursuant to this paragraph. Nothing in this Section 13.11(e) will be construed
to render ineffective any action taken at any time by the Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is so taken. Notwithstanding the
foregoing or the Trust Indenture Act, the Company will not set a record date
for, and the provisions of this Section 13.11(e) will not apply with respect to,
any notice, declaration, or direction referred to in the next paragraph.
(f) Upon receipt by the Trustee from any Holder of Securities of a
particular series of (a) any notice of default or breach referred to in Section
8.01(a)(iv) or 8.01(a)(v) with respect to Securities of such series, if such
default or breach has occurred and is continuing and the Trustee shall not have
given such notice to the Company, (b) any declaration of acceleration referred
to in Section 8.01(b), if an Event of Default with respect to Securities of such
series has occurred and is continuing and the Trustee shall not have given such
a declaration to the Company, or (c) any direction referred to in Section 8.06
with respect to Securities of such series,
58
if the Trustee shall not have taken the action specified in such direction, then
a record date will automatically and without any action by the Company or the
Trustee be set for determining the Holders of Outstanding Securities of such
series entitled to join in such notice, declaration, or direction, which record
date will be the close of business on the tenth calendar day following the day
on which the Trustee receives such notice, declaration, or direction. Promptly
after such receipt by the Trustee, and in any case not later than the fifth
calendar day thereafter, the Trustee will notify the Company and the Holders of
Outstanding Securities of such series of any such record date so fixed. The
Holders of Outstanding Securities of such series on such record date (or their
duly appointed agents), and only such Persons, will be entitled to join in such
notice, declaration, or direction, whether or not such Holders remain Holders
after such record date; PROVIDED that, unless such notice, declaration, or
direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
calendar day after such record date, such notice, declaration, or direction will
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this Section 13.11(f) will be construed to prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration, or direction contrary
to or different from, or, after the expiration of such period, identical to, the
notice, declaration, or direction to which such record date relates, in which
event a new record date in respect thereof will be set pursuant to this Section
13.11(f). Nothing in this Section 13.11(f) will be construed to render
ineffective any notice, declaration, or direction of the type referred to in
this Section 13.11(f) given at any time to the Trustee and the Company by
Holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such notice,
declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or 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 different part of such principal amount.
SECTION 13.12. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and will not affect the construction hereof.
SECTION 13.13. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
will give to any Person, other than the parties hereto and their successors
hereunder and the Holders any benefit or any legal or equitable right, remedy,
or claim under this Indenture.
--------------------
59
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
[Seal] Louisiana-Pacific Corporation
By:_______________________________
Name:
Title:
Attest:
- -------------------------
Name:
Title:
______________, as Trustee
By:_______________________________
Name:
Title:
Attest:
- -------------------------
Name:
Title:
60
STATE OF )
) ss.:
COUNTY OF )
On this __ day of ______, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he/she is _____________ of Louisiana-Pacific Corporation, one of the
entities described in and which executed the above instrument; that he/she knows
the seal of said entity; that the seal or a facsimile thereof affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that he/she signed his/her name thereto by like
authority.
------------------------------
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
61
STATE OF )
) ss.:
COUNTY OF )
On this __ day of _______, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he/she is ______________ of ______________, one of the entities described
in and which executed the above instrument; that he/she knows the seal of said
entity; that the seal or a facsimile thereof affixed to said instrument is such
seal; that it was so affixed by authority of the Board of Directors of said
entity, and that he/she signed his/her name thereto by like authority.
------------------------------
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
62
Exhibit 5.1
Jones, Day, Reavis & Pogue
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
__________ __, 1999
Louisiana-Pacific Corporation
111 S.W. Fifth Avenue
Portland, Oregon 97204
Re: Registration on Form S-3 of up
to $500,000,000 of Debt Securities
Ladies and Gentlemen:
We are acting as counsel to Louisiana-Pacific Corporation, a Delaware
corporation (the "Company"), in connection with the authorization of the
possible issuance and sale from time to time by the Company of up to
$500,000,000 of certain debt securities of the Company (the "Debt Securities")
as contemplated by the Company's Registration Statement on Form S-3 (the
"Registration Statement") to which this opinion is Exhibit 5.1. Except as
otherwise defined herein, capitalized terms that are defined in the Registration
Statement are used herein as so defined.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and on
the assumptions set forth below, we are of the opinion that the Debt Securities,
when (a) duly executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and issued and sold in
accordance with the Registration Statement and (b) delivered to the purchaser or
purchasers thereof upon receipt by the Company of such lawful consideration
therefor as the Company's Board of Directors (or a duly authorized committee
thereof or a duly authorized officer of the Company) may determine, will be
valid and binding obligations of the Company.
In rendering the foregoing opinion, we have assumed that (i) the Indenture
has been duly authorized, executed, and delivered by the Trustee, (ii) the
definitive terms of each class and series of the Debt Securities not presently
provided for in the Indenture will have been established in accordance with all
applicable provisions of law, the Company's Restated Certificate of
Incorporation and Bylaws, the Indenture, and the authorizing resolutions of the
Company's Board of Directors, and reflected in appropriate documentation
approved by us and, if applicable, duly executed and delivered by the Company
and duly authorized, executed, and delivered by any other appropriate party,
(iii) the interest rate on the Debt Securities will not be higher than the
maximum lawful rate permitted from time to time under applicable law, (iv) any
common stock or preferred stock for or into which any Debt Securities are
exercisable, exchangeable, or convertible, will have been duly authorized and
reserved for issuance, (v) the Registration Statement, and any amendments
thereto, will have become effective, (vi) a Prospectus Supplement describing
each class or series of Debt Securities offered pursuant to the Registration
Statement will have been filed with the Securities and Exchange Commission,
(vii) the resolutions authorizing the Company to register, offer, sell, and
issue the Debt Securities will remain in effect and unchanged at all times
during which the Debt Securities are offered, sold, or issued by the Company,
and (viii) all Debt Securities will be issued in compliance with applicable
federal and state securities laws.
In rendering the foregoing opinion, we have relied as to certain factual
matters upon certificates of officers of the Company, and we have not
independently checked or verified the accuracy of the statements contained
therein. In rendering the foregoing opinion, our examination of matters of law
has been limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware, and the federal laws
of the United States of America, as in effect on the date hereof.
We understand that prior to offering for sale any Debt Securities you will
advise us in writing of the terms of such offering and of such Debt Securities,
will afford us an opportunity to review the operative documents (including the
applicable Prospectus Supplement) pursuant to which the Debt Securities are to
be offered, sold, and issued, and will file as an exhibit to the Registration
Statement such supplement or amendment to this opinion (if any) as we may
reasonably consider necessary or appropriate by reason of the terms of such Debt
Securities or any changes in the Company's capital structure or other pertinent
circumstances.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us in the Prospectus under the
caption "Validity of Securities."
Very truly yours,
Exhibit 12.1
Louisiana-Pacific Corporation
Ratio of Earnings/Losses to Fixed Charges
(in millions, except for ratios)
Nine
Months Year
Ended Year Ended Year Ended Ended Year Ended Year Ended
9/30/98 12/31/97 12/31/96 12/31/95 12/31/94 12/31/93
------- ---------- ---------- -------- ---------- ----------
Earnings:
Income (loss) before taxes
and minority interest $ (7.6) $(150.0) $(326.8) $(94.8) $559.6 $427.6
Add: Amortization of
capitalized interest 3.5 4.2 3.9 3.7 4.0 3.7
Fixed charges, as
detailed below 29.6 41.7 24.9 13.9 16.5 20.2
Less: Interest capitalized (1.5) (4.8) (7.1) (10.9) (5.5) (3.5)
------ ------ ------ ------ ------ ------
Adjusted income (loss) $ 24.0 $(108.9) $(305.1) $(88.1) $574.6 $448.0
====== ======= ======= ====== ====== ======
Fixed Charges:
Interest expense, net of
fixed interest income $ 19.7 $ 30.9 $ 14.2 $ 5.3 $ 9.0 $ 12.8
Interest capitalized 4.0 5.0 5.0 5.0 5.0 5.0
Capitalized expenses related
to indebtedness 1.3 -- -- -- -- --
Portion of rents
representative of the
interest factor 4.6 5.8 5.7 3.6 2.5 2.4
------ ------ ------ ------ ------ ------
$ 29.6 $ 41.7 $ 24.9 $ 13.9 $ 16.5 $ 20.2
====== ======= ======= ====== ====== ======
Ratio of earnings to fixed
charges -- -- -- -- 34.8x 22.2x
Deficiency of earnings to
fixed charges $ 5.6 $150.6 $330.0 $102.0 -- --
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Gary C. Wilkerson, Robert A. Profusek and Mark E. Betzen, or any of
them, the true and lawful attorney-in-fact of the undersigned, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, to sign on his or her behalf, as a director or officer, or both, as
the case may be, of Louisiana-Pacific Corporation, a Delaware corporation (the
"Corporation"), a Registration Statement on Form S-3 (the "Registration
Statement") relating to the registration of up to $500,000,000 of debt
securities of the Corporation under the Securities Act of 1933, as amended, and
to sign any or all amendments and any or all post-effective amendments to the
Registration Statement, whether on Form S-3 or otherwise, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney or
attorneys-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney or attorneys-in-fact or any of
them or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Dated: February 13, 1999
/s/ Mark A. Suwyn /s/ Curtis M. Stevens
- ------------------------ ------------------------
Mark A. Suwyn Curtis M. Stevens
/s/ John W. Barter /s/ William C. Brooks
- ------------------------ ------------------------
John W. Barter William C. Brooks
/s/ Archie W. Dunham /s/ Pierre S. du Pont IV
- ------------------------ ------------------------
Archie W. Dunham Pierre S. du Pont IV
/s/ Bonnie G. Hill /s/ Donald R. Kayser
- ------------------------ ------------------------
Bonnie G. Hill Donald R. Kayser
/s/ Lee C. Simpson /s/ Patrick F. McCartan
- ------------------------ ------------------------
Lee C. Simpson Patrick F. McCartan
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Gary C. Wilkerson, Robert A. Profusek and Mark E. Betzen, or any of
them, the true and lawful attorney-in-fact of the undersigned, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, to sign on his or her behalf, as a director or officer, or both, as
the case may be, of Louisiana-Pacific Corporation, a Delaware corporation (the
"Corporation"), a Registration Statement on Form S-3 (the "Registration
Statement") relating to the registration of up to $500,000,000 of debt
securities of the Corporation under the Securities Act of 1933, as amended, and
to sign any or all amendments and any or all post-effective amendments to the
Registration Statement, whether on Form S-3 or otherwise, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney or
attorneys-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney or attorneys-in-fact or any of
them or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Dated: February 17, 1999
/s/ Paul Hansen
- -------------------------
Paul Hansen
