AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 1999
REGISTRATION NO. 333-
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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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BOISE CASCADE CORPORATION DELAWARE 82-0100960
BOISE CASCADE TRUST I DELAWARE TO BE APPLIED FOR
BOISE CASCADE TRUST II DELAWARE TO BE APPLIED FOR
BOISE CASCADE TRUST III DELAWARE TO BE APPLIED FOR
(Exact name of registrants as (State or other jurisdiction of (I.R.S. Employer
specified in their charters) incorporation or organization) Identification Nos.)
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1111 WEST JEFFERSON STREET
P.O. BOX 50
BOISE, IDAHO 83728-0001
(208) 384-6161
(Address, including zip code, and telephone number, including area code,
of registrants' principal executive offices)
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JOHN W. HOLLERAN
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
BOISE CASCADE CORPORATION
1111 WEST JEFFERSON STREET
P.O. BOX 50
BOISE, IDAHO 83728-0001
(208) 384-7704
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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COPIES TO:
J. CRAIG WALKER ROBERT E. BUCKHOLZ, JR.
BELL, BOYD & LLOYD SULLIVAN & CROMWELL
Three First National Plaza 125 Broad Street
Chicago, IL 60602 New York, NY 10004
(312-807-4321) (212-558-3876)
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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.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
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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]
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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 statement number of the earlier
effective registration statement for the same offering. [ ]
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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. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
(continued on next page)
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CALCULATION OF REGISTRATION FEE*
PROPOSED
AMOUNT PROPOSED MAXIMUM
TITLE OF EACH CLASS TO BE MAXIMUM AGGREGATE
OF SECURITIES REGISTERED OFFERING PRICE OFFERING PRICE AMOUNT OF
TO BE REGISTERED (1)(2) PER UNIT (1)(2) (1)(2) REGISTRATION FEE
Boise Cascade Corporation Common Stock, $2.50 par value
(3)
Boise Cascade Corporation Preferred Stock, no par value
(3)
Boise Cascade Corporation Debt Securities
Boise Cascade Corporation Warrants
Boise Cascade Corporation Purchase Contracts (4)
Units (5)
Boise Cascade Corporation Depositary Shares (6)
Boise Cascade Trust I Preferred Securities (7)
Boise Cascade Trust II Preferred Securities (7)
Boise Cascade Trust III Preferred Securities (7)
Boise Cascade Corporation Guarantees of Preferred
Securities of Boise Cascade Trust I, II and III (8)
Total $265,000,000 $73,670
(1) Such indeterminate number or amount of Common Stock, Preferred Stock, Debt
Securities, Purchase Contracts, Warrants, Units, Depositary Shares and
Guarantees of Boise Cascade Corporation ("Boise Cascade") and Preferred
Securities of Boise Cascade Trust I, II and III (the "Trusts") as may from
time to time be issued at indeterminate prices. Debt Securities of Boise
Cascade may be issued and sold to the Trusts, in which event such Debt
Securities may later be distributed to the holders of Preferred Securities
of the Trusts for no further consideration upon a dissolution of any such
Trust and the distribution of the assets thereof.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate public offering price of the securities
registered hereby, and the exercise price of any securities issuable upon
exercise of the Warrants registered hereby, will not exceed $265,000,000.
(3) Also includes such indeterminate number of shares of Common Stock and
Preferred Stock as may be issued upon conversion of or exchange for any Debt
Securities, Preferred Stock or Preferred Securities registered hereunder
that provide for conversion or exchange into other securities, and Boise
Cascade Corporation Common Stock Purchase Rights relating to each share of
Common Stock. No separate consideration will be received for the Common
Stock or Preferred Stock issuable upon conversion of or in exchange for Debt
Securities, Preferred Stock or Preferred Securities or for any Boise Cascade
Corporation Common Stock Purchase Rights. Also consists of such currently
indeterminate number of shares of Common Stock issuable upon settlement of
the Purchase Contracts of Boise Cascade.
(4) Each Purchase Contract of Boise Cascade obligates Boise Cascade to sell, and
the holder thereof to purchase, a number of shares of Common Stock or
Preferred Stock.
(5) Any security registered under this registration statement may be offered as
a Unit with any other security registered under this registration statement.
(6) In the event Boise Cascade elects to offer to the public fractional
interests in shares of Preferred Stock registered hereunder, Depositary
Shares, evidenced by depositary receipts issued pursuant to a deposit
agreement, will be distributed to those persons purchasing such fractional
interests, and the shares of Preferred Stock will be issued to the
depositary under such agreement.
(7) Each Preferred Security of Boise Cascade Trust I, II and III represents a
preferred undivided beneficial ownership interest in the assets of Boise
Cascade Trust I, II and III, respectively.
(8) No separate consideration will be received for the Guarantees of Boise
Cascade.
* The prospectus included in this registration statement is a combined
prospectus under Rule 429 of the Securities Act. The prospectus included
here also relates to $35 million aggregate amount of securities registered
under Registration Statement No. 33-55396 which remain unsold. Boise Cascade
previously paid $46,875 in filing fees with respect to those securities.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE 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 24, 1999
PROSPECTUS
$300,000,000
BOISE CASCADE CORPORATION
BOISE CASCADE TRUST I
BOISE CASCADE TRUST II
BOISE CASCADE TRUST III
The information in this BOISE CASCADE CORPORATION
prospectus is not complete and We may offer and sell, in one or more offerings:
may be changed. We may not - common stock
sell these securities until - preferred stock
the registration statement - debt securities
filed with the Securities and - warrants
Exchange Commission is - purchase contracts
effective. This prospectus is We may also offer and sell units comprised of two or more
not an offer to sell these different securities listed above.
securities and it is not The purchase contracts will require a purchaser to buy a
soliciting an offer to buy certain amount of common stock or preferred stock, and
these securities in any state may obligate us to pay the purchasers certain fees.
where the offer or sale is not THE TRUSTS
permitted. The Trusts are each Delaware business trusts that may
WE MAY OFFER AND SELL, IN ONE offer and sell preferred securities in one or more
OR MORE OFFERINGS, CERTAIN offerings. Each Trust will use all of the proceeds from
DEBT AND EQUITY SECURITIES. the sale of its preferred securities to buy subordinated
THE TOTAL OFFERING PRICE OF debt securities of Boise Cascade Corporation. The Trust
THESE SECURITIES, IN THE will receive cash payments from the subordinated debt
AGGREGATE, WILL NOT EXCEED securities, which it will distribute to the holders of
$300,000,000. WE WILL PROVIDE its preferred and common securities. Boise Cascade
THE SPECIFIC TERMS AND THE Corporation will own all of the common securities of the
INITIAL PUBLIC OFFERING PRICE Trusts, and will unconditionally guarantee the Trusts'
FOR EACH OFFERING IN A obligation to distribute cash to the holders of Trust
SUPPLEMENT TO THIS PROSPECTUS. preferred securities.
YOU SHOULD CAREFULLY READ THIS
PROSPECTUS AND THE SUPPLEMENT
BEFORE YOU DECIDE TO INVEST.
This prospectus may not be
used to sell securities unless
accompanied by a prospectus
supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is March , 1999
TABLE OF CONTENTS
PAGE
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Certain Forward-Looking Statements......................................................................... 2
About this Prospectus...................................................................................... 3
Boise Cascade.............................................................................................. 3
The Trusts................................................................................................. 3
Use of Proceeds............................................................................................ 5
Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends............................................................................ 5
Description of the Securities We May Offer................................................................. 5
Description of Common Stock................................................................................ 8
Description of Preferred Stock............................................................................. 9
Description of Depositary Shares........................................................................... 14
Description of Debt Securities............................................................................. 17
Description of Warrants.................................................................................... 28
Description of the Purchase Contracts and the Units........................................................ 29
Description of the Trust Preferred Securities.............................................................. 29
Description of the Trust Preferred Securities Guarantee.................................................... 34
Relationship Among the Trust Preferred Securities, the Trust Preferred Securities
Guarantee and the Subordinated Debt Securities Held by the Trust......................................... 37
Plan of Distribution....................................................................................... 37
Validity of Offered Securities............................................................................. 39
Experts.................................................................................................... 39
Where You Can Find More Information........................................................................ 40
Incorporation by Reference................................................................................. 40
CERTAIN FORWARD-LOOKING STATEMENTS
Certain statements made in this prospectus or incorporated by reference in
this prospectus may constitute forward-looking statements. Because these
forward-looking statements include risks and uncertainties, actual results may
differ materially from those expressed in or implied by the statements. Factors
that could cause actual results to differ include, among other things:
- changes in domestic or foreign competition;
- increases in industry capacity through construction of new mills or
conversion of older facilities to produce competitive products;
- variations in demand for our products;
- changes in the cost for or the availability of raw materials, particularly
market pulp and wood;
- the cost of compliance with new environmental laws and regulations;
- changes in same-location sales;
- inability to achieve cost structure improvements in our businesses;
- the pace and success of new initiatives and acquisitions;
- the integration of information systems, particularly in our office
products business;
- the success of computer-based system enhancements;
- business interruption caused by Y2K issues;
- occurrence of natural disasters, including fire, wind or insect damage to
timberlands; and
- changes in general economic conditions both domestically and abroad.
2
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that we filed
with the SEC. By using a shelf registration statement, we may sell, from time to
time, in one or more offerings, any combination of the securities described in
this prospectus. The total dollar amount of the securities we sell through these
offerings will not exceed $300,000,000.
This prospectus only provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that contains specific information about the terms of
those securities. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the additional information described
under the heading "Where You Can Find More Information."
This prospectus does not contain separate financial statements for the
Trusts. We do not believe these financial statements would be useful since each
Trust is our direct or indirect wholly-owned subsidiary, and we file
consolidated financial information under the Exchange Act. The Trusts will not
have any independent function other than to issue common and preferred
securities and to purchase our subordinated debt securities. We will provide a
full, unconditional guarantee of each Trust's obligations under its common and
preferred securities.
You should rely only on the information contained or incorporated by
reference in this prospectus and the prospectus supplement. We have not, and the
underwriters have not, authorized any other person to provide you with different
information. If anyone provides you with different information, you should not
rely on it. We will not, and the underwriters will not, make an offer to sell
these securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus, as well as
information we previously filed with the SEC and incorporated by reference, is
accurate as of the date on the front cover of this prospectus only. Our
business, financial condition, results of operations and prospects may have
changed since that date.
BOISE CASCADE
Boise Cascade Corporation is a major distributor of office products and
building materials and an integrated manufacturer and distributor of paper and
wood products. We also own and manage over 2 million acres of timberland in the
United States.
Boise Cascade is a Delaware corporation, and our principal executive office
is located at 1111 West Jefferson Street, Boise, Idaho 83728-0001, telephone
208/384-6161. All references to "we," "us," or "Boise Cascade" in this
prospectus mean, unless the context otherwise indicates, Boise Cascade
Corporation and its consolidated subsidiaries.
THE TRUSTS
Each of the Trusts is a statutory business trust formed under Delaware law
pursuant to (i) a separate declaration of trust executed by Boise Cascade, as
depositor, and the trustees (described below) for the trust and (ii) the filing
of a certificate of trust with the Delaware Secretary of State. Each Trust's
declaration will be amended and restated substantially in the form filed as an
exhibit to the registration statement, as of the date the securities of that
Trust are initially issued. Each amended declaration will be qualified as an
indenture under the Trust Indenture Act of 1939.
3
Each Trust exists solely for the purposes of:
- issuing preferred securities and common securities representing undivided
beneficial interests in the assets of that trust;
- investing the proceeds of those securities issuances in junior
subordinated debt securities of Boise Cascade; and
- engaging only in other incidental activities.
Boise Cascade will own, directly or indirectly, all of the common securities
of each Trust. The common securities will generally rank equally in right of
payment with the preferred securities, and payments on both will be made pro
rata. However, upon an event of default under the Trust's amended declaration,
the rights of the holders of the common securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities. The
aggregate liquidation amount of the common securities will equal 3% of the total
capital of each Trust.
Each Trust has a term of approximately 55 years, but may terminate earlier
as provided in its amended declaration. The business and affairs of each Trust
will be conducted by the trustees appointed by Boise Cascade, as the direct or
indirect holder of all the common securities of that Trust. Boise Cascade, as
holder of all of the common securities, will be entitled to appoint, remove or
replace any of the trustees of each Trust.
The duties and obligations of the trustees shall be governed by the amended
declaration of each Trust. A majority of the trustees of each Trust will be
persons who are employees or officers of or affiliated with Boise Cascade. In
limited circumstances to be set forth in the prospectus supplement, the holders
of a majority of the preferred securities will be entitled to appoint one
additional trustee, who need not be an employee or officer of or otherwise
affiliated with Boise Cascade.
One trustee of each Trust will be a financial institution which will be
unaffiliated with Boise Cascade and which shall act as property trustee and as
indenture trustee for purposes of the Trust Indenture Act, pursuant to the terms
set forth in the prospectus supplement. The property trustee will hold title to
the junior subordinated debt securities for the benefit of the holders of the
Trust securities. The property trustee will have the power to exercise all
rights, powers and privileges under the indenture related to the junior
subordinated debt securities. In addition, the property trustee will maintain
exclusive control of a segregated non-interest bearing bank account, a "Property
Account," to hold all payments made in respect of the junior subordinated debt
securities. The property trustee will make payments of distributions and
payments on liquidation, redemption and otherwise to the Property Account.
The rights of the holders of the trust securities, including economic
rights, rights to information and voting rights, are set forth in the amended
declaration of each Trust, the Delaware Business Trust Act and the Trust
Indenture Act. Boise Cascade will pay all fees and expenses related to the
Trusts and the offering of trust securities. The office of the Delaware trustee
for each Trust in the State of Delaware is Wilmington Trust Company, 1100 North
Market Street, Wilmington, Delaware 19890. The principal place of business of
the Trust will be c/o Boise Cascade Corporation, 1111 West Jefferson Street,
P.O. Box 50, Boise, Idaho 83728-0001.
4
USE OF PROCEEDS
Unless we have indicated otherwise in the accompanying prospectus
supplement, we expect to use the net proceeds we receive from any offering of
these securities for our general corporate purposes, including working capital,
repayment or reduction of debt, and capital expenditures. We may also use
proceeds for acquisition of new facilities, real property, or other business
enterprises. Each of the Trusts will use the net proceeds from the sale of its
preferred securities to purchase a series of junior subordinated debt securities
from Boise Cascade. We also expect to use the net proceeds from the sale of
those junior subordinated debt securities for the purposes described in this
section.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
YEAR ENDED DECEMBER 31
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1994 1995 1996 1997 1998
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Ratio of earnings to fixed charges (1)................. -- 4.18 -- -- --
Ratio of earnings to combined fixed charges and
preferred stock dividends (1)........................ -- 3.34 -- -- --
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(1) Earnings before fixed charges and earnings before combined fixed charges and
preferred stock dividends were inadequate to cover total fixed charges and
total combined fixed charges and preferred stock dividends by $88,207,000,
$5,602,000, $50,666,000 and $33,499,000 for the years ended December 31,
1994, 1996, 1997 and 1998.
For any further information on the Ratio of Earnings to Fixed Charges,
please see our most recent Form 10-K. For any further information on the Ratio
of Earnings to Combined Fixed Charges and Preferred Stock Dividends, please see
Exhibit 12.2 to the registration statement.
DESCRIPTION OF THE SECURITIES WE MAY OFFER
Boise Cascade may issue, in one or more offerings:
- common stock, par value $2.50 per share;
- preferred stock, no par value per share, which may be issued in the form
of depositary shares representing fractions of shares of preferred stock;
- debt securities, which may be senior or subordinated;
- warrants to purchase other securities; and
- purchase contracts.
We may also offer and sell units comprised of two or more different
securities listed above.
The Trusts may issue, from time to time, in one or more offerings, Trust
preferred securities that will be unconditionally guaranteed by Boise Cascade.
This prospectus contains a summary of the material and general terms of the
various securities that we or the Trusts may offer. The prospectus supplement
relating to any particular securities offered will describe the specific terms
of the securities, which may be in addition to or different from the general
terms summarized in this prospectus. The summary in this prospectus and in any
prospectus supplement does not describe every aspect of the securities and is
subject to and qualified in its entirety by reference to all applicable
provisions of the documents relating to the securities offered, as described in
the sections below. These documents are or will be filed as exhibits to or
incorporated by reference in the registration statement.
5
In addition, the prospectus supplement will set forth the terms of the
offering, the initial public offering price and net proceeds to Boise Cascade.
Where applicable, the prospectus supplement will also describe any material
United States federal income tax considerations relating to the securities
offered and indicate whether the securities offered are or will be listed on any
securities exchange.
BOOK-ENTRY SYSTEM
Boise Cascade or the Trusts may issue securities in the form of one or more
fully registered global securities. These will be deposited with, or on behalf
of, the Depository Trust Company ("DTC") and registered in the name of its
nominee. Except as described below, the global securities may be transferred, in
whole and not in part, only to DTC or to another nominee of DTC.
DTC has advised Boise Cascade that it is:
- A limited-purpose trust company organized under the laws of the state of
New York;
- A member of the Federal Reserve System;
- A "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
- A "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934.
DTC was created to hold securities for institutions that have accounts with
DTC ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants through electronic book-entry
changes in participants' accounts. DTC's participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations, some of whom (and/or their representatives) own DTC. Access to
DTC's book-entry system is also available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. DTC administers
its book-entry system in accordance with its rules and bylaws and legal
requirements.
Upon issuance of a global security representing offered securities, DTC will
credit (on its book-entry registration and transfer system) the principal amount
to participants' accounts. Ownership of beneficial interests in the global
security will be limited to participants or to persons that hold interests
through participants. Ownership of interests in the global security will be
shown on, and the transfer of those ownership interests will be effected only
through, records maintained by DTC (with respect to participants' interests) and
the participants (with respect to the owners of beneficial interests in the
global security). The laws of some jurisdictions may require that certain
purchasers of securities take physical delivery of those securities in
definitive form. These limits and laws may impair the ability to transfer
beneficial interests in a global security.
So long as DTC (or its nominee), is the registered holder and owner of a
global security, DTC (or its nominee) will be considered, for all purposes under
the applicable indenture, the sole owner and holder of the related offered
securities. Except as described below, owners of beneficial interests in a
global security will not:
- be entitled to have the offered securities registered in their names; or
- receive or be entitled to receive physical delivery of certificated
offered securities in definitive form.
Each person owning a beneficial interest in a global security must rely on
DTC's procedures (and, if that person holds through a participant, on the
participant's procedures) to exercise any rights of a holder of offered
securities under the global security or any applicable indenture, or otherwise.
The indentures provide that DTC may grant proxies and otherwise authorize
participants to take any action which it (as the holder of a global security) is
entitled to take under the indentures or the global security. We understand that
under existing industry practice, if Boise Cascade or a Trust requests any
action of holders or an owner of a beneficial interest in a global security
desires to take any action that
6
DTC (as the holder of the global security) is entitled to take, DTC would
authorize the participants to take that action and the participants would
authorize their beneficial owners to take the action or would otherwise act upon
the instructions of their beneficial owners.
Boise Cascade or the Trusts will make payments with respect to securities
represented by a global security to DTC. We expect that DTC, upon receipt of any
payments, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests. We also expect
that payments by participants to owners of beneficial interests in a global
security held through them will be governed by standing instructions and
customary practices (as is the case with securities held for customers' accounts
in "street name") and will be the responsibility of the participants. None of
Boise Cascade, the Trusts or any trustee will have any responsibility or
liability for:
- any aspect of the records relating to, or payments made on account of,
beneficial ownership interests in a global security for any securities;
- maintaining, supervising, or reviewing any records relating to any
beneficial ownership interests;
- any other aspect of the relationship between DTC and its participants; or
- the relationship between the participants and the owners of beneficial
interests in a global security.
Unless and until they are exchanged in whole or in part for certificated
securities in definitive form, the global securities may not be transferred
except as a whole by DTC to its nominee or by its nominee to DTC or another
nominee.
The securities of any series represented by a global security may be
exchanged for certificated securities in definitive form if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for the global security or if at any time it ceases to be a clearing
agency registered under the Securities Exchange Act of 1934;
- Boise Cascade decides at any time not to have the securities of that
series represented by a global security and so notifies the Trustee; or
- In the case of debt securities, an event of default has occurred and is
continuing with respect to the debt securities.
If there is such an exchange, we will issue certificated securities in
authorized denominations and registered in such names as DTC directs. Subject to
the foregoing, the global securities are not exchangeable, except for a global
security(ies) of the same aggregate denomination to be registered in DTC's or
its nominee's name.
7
DESCRIPTION OF COMMON STOCK
Boise Cascade's authorized capital stock consists of 200,000,000 shares of
common stock and 10,000,000 shares of preferred stock. We describe the preferred
stock under the heading "Description of Preferred Stock" below.
This section summarizes the material and general terms of the common stock.
The prospectus supplement relating to the common stock offered will set forth
the number of shares offered, the initial offering price and market price,
dividend information and any other relevant information. The summary in this
section and in the prospectus supplement does not describe every aspect of the
common stock and is subject to and qualified in its entirety by reference to all
the provisions of the Boise Cascade's Restated Certificate of Incorporation,
Boise Cascade's by-laws and the Delaware General Corporation Law. The Restated
Certificate of Incorporation and the by-laws are incorporated by reference in
the registration statement.
TERMS OF THE COMMON STOCK
As of February 28, 1999, there were 56,371,927 shares of common stock issued
and outstanding, and 9,964,069 shares reserved for issuance under Boise
Cascade's stock option plans and under outstanding convertible securities.
The holders of common stock have one vote for each share held. Subject to
the prior rights of holders of any issued and outstanding preferred stock or
that may be issued in the future, holders of common stock are entitled to
receive such dividends as the Board of Directors may declare from time to time
out of funds legally available therefor. In the event of a liquidation (whether
voluntary or involuntary) or reduction in Boise Cascade's capital resulting in
any distribution of assets to stockholders, the holders of common stock are
entitled to receive, pro rata according to the number of the shares held by
each, all of the assets of Boise Cascade remaining for distribution after
payment to creditors and the holders of any issued and outstanding preferred
stock of the full preferential amounts to which they are entitled.
Holders of common stock do not have preemptive rights to subscribe for and
purchase any new or additional issue of common stock or securities convertible
into common stock. Shares of the common stock are not subject to redemption.
The outstanding shares of common stock are listed on the New York Stock
Exchange and the Chicago Stock Exchange. The co-transfer agent (together with
Boise Cascade) and registrar of the common stock is First Chicago Trust Company
of New York.
SHAREHOLDER RIGHTS PLAN
Boise Cascade has had a shareholder rights plan since January 1986. The
current plan took effect in December 1998. At that time, the rights under the
previous plan expired and we distributed to our common stockholders one new
right for each common share held. Rights will be issued with each share of
common stock issued before the rights become exercisable. The rights become
exercisable ten days after a person or group acquires 15% of Boise Cascade's
outstanding voting securities or ten business days after a person or group
commences or announces an intention to commence a tender or exchange offer that
could result in the acquisition of 15% of the those securities. Each full right,
if it becomes exercisable, entitles the holder to purchase one share of common
stock at a purchase price of $175 per share, subject to adjustment. In addition,
upon the occurrence of certain events, and upon payment of the then-current
purchase price, the rights may "flip in" and entitle holders to buy common
stock, or "flip over" and entitle holders to buy common stock in an acquiring
entity, in such amount that the market value is equal to twice the purchase
price. The rights are nonvoting and may be redeemed by Boise Cascade for one
cent per Right at any time before they become exercisable. The rights expire in
December 2008.
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
Various provisions of Boise Cascade's Restated Certificate of Incorporation,
by-laws, and shareholder rights plan and the Delaware
8
General Corporation law may hinder or delay any transaction involving Boise
Cascade that might result in a change of control.
As discussed above, Boise Cascade has adopted a shareholder rights plan
which has the effect of providing stockholders with the right to purchase shares
of common stock or securities of an acquiring company at half the market price
under certain circumstances involving a potential change in control of Boise
Cascade that has not been approved by the Board of Directors. In addition, the
Delaware General Corporation Law provides, among other things, that any
beneficial owner of 15% or more of Boise Cascade's voting stock is prohibited,
without the prior approval of the Board of Directors, from entering into any
business combination with Boise Cascade for three years from the date that 15%
ownership interest is acquired unless the combination otherwise satisfies
Section 203 of the Delaware General Corporation Law. Additionally, the "fair
price provisions" of the Restated Certificate of Incorporation require that
certain proposed business combinations between Boise Cascade and an "interested
party" (a beneficial owner of 10% or more of the voting power of Boise Cascade)
must be approved by the holders of a majority of the voting power of Boise
Cascade held by stockholders other than the interested party, unless certain
fair price and procedural requirements are met or the directors of Boise Cascade
who are not affiliated with the interested party approve the business
combination. A vote of the holders of 80% of the voting power of Boise Cascade
is required to amend the fair price provisions of the Restated Certificate of
Incorporation, unless the amendment is unanimously recommended by the Board of
Directors, and none of the directors are affiliated with the interested party.
The Restated Certificate of Incorporation and by-laws contain other
provisions which may be viewed as having an anti-takeover effect. The Restated
Certificate of Incorporation classifies the Board of Directors into three
classes and provides that vacancies on the Board of Directors may only be filled
by a majority vote of the remaining directors and that directors so chosen shall
hold office until the end of the full term of the class in which the vacancy
occurred. Under the Restated Certificate of Incorporation, a director may be
removed from office only with cause and only by the affirmative vote of the
holders of at least 80% of the voting power of Boise Cascade. A vote of the
holders of 80% of the voting power of Boise Cascade is required to amend these
provisions.
Boise Cascade is not required to seek stockholder approval prior to
designating any future series of preferred stock. Such preferred stock could be
issued by the Board of Directors in one or more transactions with terms which
might make the acquisition of a controlling interest in Boise Cascade more
difficult or costly.
The Restated Certificate of Incorporation and the by-laws also contain
provisions that may reduce surprise and disruptive tactics at stockholders'
meetings. The Restated Certificate of Incorporation provides that no action may
be taken by stockholders except at an annual meeting or special meeting, and the
by-laws do not permit stockholders to directly call a special meeting of
stockholders. A stockholder must give written notice to Boise Cascade of an
intention to nominate a director for election at an annual meeting not less than
30 days nor more than 60 days prior to the meeting, with certain exceptions.
Each of these provisions tends to make a change of control of the Board of
Directors more difficult and time consuming.
DESCRIPTION OF PREFERRED STOCK
This section summarizes the material and general terms of the preferred
stock that we may offer. The prospectus supplement relating to a particular
series of preferred stock offered will describe the specific terms of that
series, which may be in addition to or different from the general terms
summarized in this section. The summary in this section and in any prospectus
supplement does not describe every aspect of the preferred stock and is subject
to and qualified in its entirety by reference to all the provisions of Boise
Cascade's Restated Certificate of
9
Incorporation, the Certificate of Designation relating to the applicable series
of preferred stock, and the Delaware General Corporation Law. The Certificate of
Designation will be filed as an exhibit to or incorporated by reference in the
registration statement.
AUTHORITY OF THE BOARD TO ISSUE PREFERRED STOCK
Under the Restated Certificate of Incorporation, the Board has the
authority, without further stockholder action, to issue from time to time up to
a maximum of 10,000,000 shares of preferred stock, in one or more series and for
such consideration as may be fixed from time to time by the Board. The Board has
the authority to fix, before the issuance of any shares of preferred stock of a
particular series, the designation of the series, the number of shares to
comprise the series, the dividend rate or rates payable with respect to the
shares of the series, the redemption price or prices, if any, and the terms and
conditions of any redemption, the voting rights, any sinking fund provisions for
the redemption or purchase of the shares of the series, the terms and conditions
upon which the shares are convertible or exchangeable, if they are convertible
or exchangeable, amounts receivable by holders of the series upon liquidation,
dissolution or winding up, and any other relative rights, preferences and
limitations pertaining to the series. As of February 28, 1999, there were
6,745,347 shares of Convertible Preferred Stock, Series D, $.01 stated value,
authorized and 5,325,741 shares outstanding.
The prospectus supplement relating to the particular series of preferred
stock will describe the specific terms of the series, including:
- the designation, stated value and liquidation preference of the series,
the number of shares comprising the series and the number of shares
offered;
- the initial public offering price;
- the dividend rate or rates (or method of calculation), the dividend
periods, the date or dates on which dividends shall be payable and whether
dividends shall be cumulative or noncumulative and, if cumulative, the
dates from which dividends will begin to cumulate;
- any redemption or sinking fund provisions;
- any conversion or exchange provisions;
- the procedures for any auction and remarketing of the series;
- whether interests in the shares of the series will be represented by
depositary shares;
- the voting powers, if any (not to exceed one vote per share), of the
shares of the series, in addition to those set forth below; and
- any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions of the
series.
As described under "Description of Depositary Shares," Boise Cascade may, at
its option, elect to offer depositary shares evidenced by depositary receipts,
each representing a fraction (to be specified in the prospectus supplement) of a
share of the particular series of the preferred stock issued and deposited with
a depositary, in lieu of offering full shares of that series of the preferred
stock.
The preferred stock of each series shall rank on a parity with the preferred
stock of every other series, and shall rank senior to the common stock in
priority of payment of dividends and in the distribution of assets in the event
of any liquidation, dissolution or winding up of Boise Cascade, to the extent of
the preferential amounts to which the preferred stock of the respective series
shall be entitled.
Upon issuance, the shares of preferred stock will be fully paid and
nonassessable. holders of preferred stock have no preemptive rights. Shares of
preferred stock redeemed, converted or otherwise reacquired by Boise Cascade
shall resume the status of authorized and unissued shares of preferred stock,
undesignated as to series, and shall be available for subsequent issuance.
10
DIVIDENDS
The holders of the preferred stock of each series will be entitled to
receive, when and as declared by the Board of Directors, preferential dividends
in cash payable at the rate, from the date, and on the quarterly dividend
payment dates and, if cumulative, cumulative from the date or dates, set forth
in the prospectus supplement relating to that series, and no more. Any
arrearages in dividends on the preferred stock will not bear interest.
The preferred stock may limit Boise Cascade's ability to make payments with
respect to stock ranking junior to the preferred stock as to the payment of
dividends or the distribution of assets. As long as any of the preferred stock
is outstanding, Boise Cascade may only pay or declare dividends (other than
dividends payable in junior stock and cash in lieu of fractional shares) in cash
or otherwise, or make any other distribution, on any junior stock, if:
- there are no arrearages in dividends on preferred stock for any past
quarterly dividend period, and dividends in full for the current quarterly
dividend period have been paid or declared on all preferred stock; and
- Boise Cascade has paid or set aside any amounts required to be paid or set
aside for any purchase, retirement and sinking funds for the preferred
stock of any series; and
- Boise Cascade is not in default on any of its obligations to redeem any of
the preferred stock.
In addition, so long as any of the preferred stock is outstanding, neither
Boise Cascade nor any of its subsidiaries may purchase, redeem or otherwise
acquire any shares of any junior stock (except in connection with a
reclassification or exchange of any junior stock through the issuance of other
junior stock or the purchase, redemption or other acquisition of any junior
stock with proceeds of a reasonably contemporaneous sale of other junior stock)
nor may Boise Cascade set aside or make available any funds for any sinking fund
for the purchase or redemption of any junior stock, unless
- there are no arrearages in dividends on preferred stock for any past
quarterly dividend period; and
- Boise Cascade has paid or set aside any amounts then required to be paid
or set aside for any purchase, retirement and sinking funds for the
preferred stock of any series; and
- Boise Cascade is not in default on any of its obligations to redeem any of
the preferred stock.
Subject to the provisions described above, the Board of Directors may
declare and pay such dividends (payable in cash, property or junior stock) as
the Board may determine on the shares of any junior stock from time to time. If
such dividends are declared and paid, the holders of such junior stock will be
entitled, to the exclusion of holders of the preferred stock, to share ratably
in those dividends according to their respective interests.
Boise Cascade may not declare or pay or set apart for payment dividends in
full on any series of preferred stock unless there are no arrearages in
dividends on preferred stock for any past quarterly dividend period and
dividends in full for the current quarterly dividend period have been paid or
declared on all preferred stock to the extent that such dividends are
cumulative. Any dividends paid or declared when dividends are not so paid or
declared in full will be shared ratably by the holders of all series of
preferred stock in proportion to such respective arrearages and unpaid and
undeclared current quarterly cumulative dividends.
LIQUIDATION
In the event of any liquidation, dissolution or winding up of Boise Cascade,
whether voluntary or involuntary, the holders of preferred stock of each series
will be entitled to receive the full preferential amount set forth in the
prospectus supplement relating to that series, including any arrearages in
dividends on that series to the date fixed for the payment in liquidation,
before any distribution will be made to the holders of any junior stock. After
such
11
payment in full to the holders of the preferred stock, the remaining assets of
Boise Cascade will then be distributable exclusively among the holders of any
junior stock, according to their respective interests.
If the assets of Boise Cascade are insufficient to permit the payment of the
full preferential amounts payable to the holders of the preferred stock of the
respective series in the event of a liquidation, dissolution or winding up, then
the assets available for distribution to holders of the preferred stock will be
distributed ratably to those holders in proportion to the full preferential
amounts payable on the respective shares.
A consolidation or merger of Boise Cascade with or into one or more other
corporations or a sale of all or substantially all of the assets of Boise
Cascade will not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of Boise Cascade.
REDEMPTION
The redemption rights and redemption price or prices for the preferred stock
of any series will be set forth in the prospectus supplement relating to that
series. The Restated Certificate of Incorporation provides that Boise Cascade
will not, without the approval of at least 66 2/3% of the shares of preferred
stock then outstanding, purchase or redeem less than all of the preferred stock
at the time outstanding unless the full cumulative dividend on all shares of
preferred stock then outstanding will have been paid or declared and set apart.
Unless expressly provided otherwise in the prospectus supplement relating to
the preferred stock of a series,
- notice of redemption will be mailed to record holders not less than 30
days nor more than 90 days prior to the date fixed for redemption; and
- in case of a partial redemption, the shares of the series to be redeemed
will be selected pro rata or by lot or in such other manner as the Board
of Directors may determine.
If any notice of redemption is duly given, then on and after the date fixed
in the notice of redemption any arrearages in dividends on the shares of
preferred stock called for redemption will cease to accumulate, unless Boise
Cascade will have defaulted in the payment or deposit of the redemption price
pursuant to the notice. On that date all rights of the holders of the preferred
stock so called for redemption will cease and terminate except the right to
receive the redemption price upon surrender of their certificates for
redemption.
Shares of preferred stock of any series may also be subject to redemption,
in the manner described above, through operation of any sinking or retirement
fund created for that series, at the redemption prices and under the terms and
provisions described in the prospectus supplement relating to that series.
Boise Cascade shall not be required to register a transfer of any share of a
series of preferred stock within 15 days preceding a selection for redemption of
shares of that series. Boise Cascade is also not required to register a transfer
of any share which has been selected for redemption.
If Boise Cascade does not pay in full any obligation to retire shares of all
series of preferred stock as to which such obligation exists, the number of each
such series to be retired pursuant to any such obligation will be in proportion
to the respective amounts which would be payable if all amounts payable for the
retirement of all such series were discharged in full.
VOTING RIGHTS
The holders of the shares of each series of preferred stock will be entitled
to such voting powers, if any (not to exceed one vote per share), as may be set
forth in the prospectus supplement relating to that series of preferred stock.
Any depositary shares will entitle the holders to the fractional vote specified
in the prospectus supplement.
If the equivalent of six quarterly dividends payable on any series of
preferred stock is in arrears, the number of directors will be
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increased by three and the holders of all series of preferred stock, voting as a
single class without regard to series, will be entitled to elect the additional
three directors until Boise Cascade has paid or declared and set apart for
payment four consecutive quarterly dividends, if the shares of the series are
non-cumulative, or paid or declared and set apart for payment all dividends in
arrears and dividends in full for the current quarterly period, if the shares of
the series are cumulative. As used in this paragraph, the term "series of
preferred stock" means any series of preferred stock to which the provisions set
forth in the preceding sentences are expressly made applicable by the Restated
Certificate of Incorporation or the resolutions of the Board of Directors
providing for the issue of that series. To the extent the terms of a series of
preferred stock differ from the terms of other series of preferred stock (as to
conversion rights, redemption or sinking fund provisions or other material
terms), the interests of the holders of the various series may differ or be
perceived by such additional directors to differ.
In addition, the holders of the preferred stock, and of each series of
preferred stock will have all of the voting rights which are described in the
paragraphs immediately following together with any other such rights required by
law.
Boise Cascade will not, without the approval of the holders of 66 2/3% of
all the shares of preferred stock then outstanding:
- amend, alter or repeal any of the provisions of the Restated Certificate
of Incorporation or the bylaws of Boise Cascade so as to affect adversely
the powers, preferences or rights of the holders of the preferred stock or
reduce the time for any notice to which only the holders of the preferred
stock may be entitled. An amendment of the Restated Certificate of
Incorporation to authorize or create, or to increase the authorized amount
of common stock or other junior stock or any class ranking on a parity
with the preferred stock will not be deemed to affect adversely the
powers, preferences or rights of the holders of the preferred stock;
- authorize or create, or increase the authorized amount of, any stock of
any class or any security convertible into stock of any class ranking
prior to the preferred stock;
- voluntarily dissolve, liquidate or wind up the affairs of Boise Cascade or
sell, lease or convey all or substantially all its property and assets;
- merge or consolidate with or into any other corporation, unless each
holder of preferred stock immediately preceding such merger or
consolidation receives in the resulting corporation the same number of
shares, with substantially the same rights and preferences, as correspond
to the preferred stock so held; or
- purchase or redeem less than all of the preferred stock at the time
outstanding unless Boise Cascade has paid or declared and set apart a sum
sufficient for payment of the full cumulative dividend on all shares of
preferred stock then outstanding.
Boise Cascade will not, without the approval of the holders of at least
66 2/3% of the shares of any series of preferred stock then outstanding, amend,
alter or repeal any of the provisions of the Restated Certificate of
Incorporation or the by-laws, or the provisions of the series, so as to affect
adversely the powers, preferences or rights of the holders of the preferred
stock of the series in a manner not equally applicable to all series of
preferred stock.
Boise Cascade will not, without the approval of the holders of at least a
majority of the shares of preferred stock then outstanding: (i) increase the
authorized amount of the preferred stock; or (ii) create any other class or
classes of stock ranking on a parity with the preferred stock, either as to
dividends or upon liquidation, or create any stock or other security convertible
into or exchangeable for or evidencing the right to purchase any such stock
ranking on a parity with the preferred stock, or increase the authorized number
of shares of any such other class of stock or other security.
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However, notwithstanding the provisions summarized in the preceding three
paragraphs, no such approval of the holders of the preferred stock shall be
required if, at or prior to the time when such amendment, issuance or other
event is to occur or take effect, as the case may be, provision is to be made
for the redemption of all shares of preferred stock at the time outstanding, or,
in the case of any such amendment, alteration or repeal as to which the consent
of less than all the preferred stock would otherwise be required, for the
redemption of all shares of preferred stock the consent of which would otherwise
be required.
CONVERSION OR EXCHANGE RIGHTS
The prospectus supplement relating to a series of preferred stock that is
convertible or exchangeable will state the terms on which shares of that series
are convertible or exchangeable into common stock, another series of preferred
stock or debt securities.
SERIES D PREFERRED STOCK
The Series D preferred stock was sold by Boise Cascade in July 1989 to the
trustee for Boise Cascade's Employee Stock Ownership Plan, a component of its
Savings and Supplemental Retirement Plan. The Series D preferred stock is
convertible into common stock at any time at the trustee's option at a
conversion ratio of .80357 share of common stock for each share of Series D
preferred stock and bears a cumulative annual dividend of $3.31875 per share.
Each share of Series D preferred stock is redeemable at Boise Cascade's option,
and is entitled to one vote and to a preference of $45 in liquidation. The
Series D preferred stock has a minimum redemption value equal to $45.33188 per
share until June 27, 1999 and $45 per share after June 27, 1999. The Series D
preferred stock is not registered with the Commission and may be held only by
the trustee.
DESCRIPTION OF DEPOSITARY SHARES
This section summarizes the material and general terms of the depositary
shares we may offer. The prospectus supplement relating to any particular
depositary shares offered will describe the specific terms of the depositary
shares, including, but not limited to, the specific terms of the preferred stock
represented by the depositary shares. The specific terms may be in addition to
or different from the general terms summarized in this section. The summary in
this section and in any prospectus supplement does not describe every aspect of
the depositary shares or the preferred stock represented by the depositary
shares and is subject to and qualified in its entirety by reference to all the
provisions of the Deposit Agreement and the depositary receipt. The forms of the
Deposit Agreement and the depositary receipt are or will be filed as exhibits to
or incorporated by reference in the registration statement.
Boise Cascade may, at its option, elect to offer fractional shares, rather
than full shares, of any series of preferred stock. Each fractional share of
preferred stock will be represented by a depositary share pursuant to the terms
of a Deposit Agreement among Boise Cascade, a bank or trust company selected by
Boise Cascade to act as Depositary and all holders from time to time of
depositary receipts issued thereunder. The depositary shares will be evidenced
by depositary receipts. Subject to the terms of the Deposit Agreement, each
owner of a depositary share will be entitled, proportionately, to all the
rights, preferences and privileges of the fractional share of preferred stock
represented by that depositary share (including dividend, voting and liquidation
rights), and subject to all of the limitations of the fractional share of
preferred stock represented thereby. Such rights and limitations are either
summarized above under "Description of Preferred Stock" or set forth in the
prospectus supplement relating to such series of preferred stock. The prospectus
supplement will discuss the United States federal income tax considerations
which apply to the depositary shares.
14
ISSUANCE OF DEPOSITARY RECEIPTS AND WITHDRAWAL OF PREFERRED STOCK FROM DEPOSIT
Upon the issuance of the shares of any series of preferred stock to be
represented by depositary shares, Boise Cascade will deposit those shares of
preferred stock with the Depositary, which will then issue and deliver the
depositary receipts to Boise Cascade. Boise Cascade will, in turn, deliver the
depositary receipts to the purchasers of the preferred stock. Depositary
receipts will be issued evidencing only whole depositary shares.
Upon surrender of depositary receipts to the depositary the owner of the
depositary shares evidenced by the depositary receipts is entitled to delivery
of certificates evidencing the number of shares of preferred stock, but only in
whole shares of preferred stock, represented by such depositary receipts. If the
depositary receipts delivered by the holder evidence a number of depositary
shares in excess of the number of whole shares of preferred stock to be
withdrawn, the Depositary will deliver to such holder at the same time a new
depositary receipt evidencing the excess number of depositary shares. Boise
Cascade does not expect that there will be any public trading market for the
shares of preferred stock of such series except as represented by the depositary
shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred stock to the record holders
of depositary shares representing the preferred stock in proportion to the
numbers of depositary shares owned by those holders on the relevant record date.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of depositary shares
entitled to the distribution, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may, with the
approval of Boise Cascade, sell such property and distribute the net proceeds
from such sale to such holders.
REDEMPTION, CONVERSION OR EXCHANGE OF DEPOSITARY SHARES
If a series of the preferred stock underlying the depositary shares is
subject to redemption, conversion or exchange, the depositary shares will be
redeemed from the proceeds received by the Depositary from any redemption of the
preferred stock held by the Depositary, or converted or exchanged for the common
stock or debt securities issued upon conversion of or in exchange for the
preferred stock. The redemption, conversion or exchange price per depositary
share will be equal to the applicable fraction of the redemption price per share
or market value of common stock or debt securities per depositary share payable
with respect to such series of the preferred stock. If less than all the
depositary shares are to be redeemed, converted or exchanged, the depositary
shares to be redeemed, converted or exchanged will be selected by lot or pro
rata or by any other equitable method as may be determined by Boise Cascade.
After the date fixed for redemption, conversion or exchange (which will be
the same date as the redemption, conversion or exchange date for the preferred
stock), the depositary shares called for redemption or exchange will no longer
be deemed to be outstanding and all rights of the holders of the depositary
shares will cease, except the right to receive any money or other property to
which the holders of such depositary shares were entitled upon such redemption,
conversion or exchange upon surrender to the Depositary of the depositary
receipts evidencing such depositary shares.
VOTING
Upon receipt of notice of any meeting at which the holders of the preferred
stock are entitled to vote, the Depositary will mail the information contained
in the notice of meeting to the record holders of the depositary shares relating
to such preferred stock. Each record holder for such depositary shares on the
record date (which will be the same date as the record date for the preferred
stock) will be entitled to instruct the Depositary as to the exercise of the
voting rights pertaining to the number of shares
15
of preferred stock underlying such holder's depositary shares. The Depositary
will endeavor, to the extent practicable, to vote the number of shares of
preferred stock underlying such depositary shares in accordance with such
instructions, and Boise Cascade will agree to take all action which may be
deemed necessary by the Depositary in order to enable the Depositary to do so.
The Depositary will abstain from voting shares of preferred stock to the extent
the Depositary does not receive specific instructions from the holders of
depositary shares relating to such shares.
AMENDMENT OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between Boise Cascade and the Depositary. However, any amendment which imposes
or increases any fees, taxes, or other charges upon holders of depositary
receipts (other than taxes and other governmental charges, fees, and other
expenses payable by such holders as stated under "Charges of Depositary"), or
which otherwise prejudices any substantial existing right of holders of
depositary receipts, will not take effect as to outstanding depositary receipts
until the expiration of 30 days after notice of such amendment has been mailed
to the record holders of outstanding depositary receipts. Every holder of
depositary receipts at the time any such amendment becomes effective shall be
deemed to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended.
CHARGES OF DEPOSITARY
Boise Cascade will pay all transfer and other taxes and governmental charges
that arise solely from the existence of the depositary arrangements. Boise
Cascade will pay the charges of the Depositary in connection with the initial
deposit of the preferred stock and any redemption or exchange of the preferred
stock. Holders of depositary shares will pay all other transfer and other taxes
and governmental charges, and, in addition, any other charges that are expressly
provided in the Deposit Agreement to be for their accounts.
NOTICE, LIMITATION ON OBLIGATIONS
The Depositary will forward to the holders of depositary shares all reports
and communications from Boise Cascade which Boise Cascade is required to furnish
to the holders of the preferred stock.
Neither the Depositary nor Boise Cascade will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of Boise Cascade and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties under the Deposit Agreement and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity is furnished.
We and the Depositary may rely upon written advice of counsel or accountants, or
information provided by persons presenting preferred stock for deposit, holders
of depositary shares or other persons believed to be competent, and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to Boise Cascade notice
of its election to do so, and Boise Cascade may at any time remove the
Depositary. Any such resignation or removal will take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Boise Cascade will appoint such successor Depositary within 45 days after
delivery of the notice of resignation or removal. Boise Cascade or the
Depositary may terminate the Deposit Agreement if a period of 45 days has
expired after the Depositary delivered to Boise Cascade written notice of its
election to resign and a successor depositary has not been appointed. Upon
termination of the Deposit Agreement, the Depositary will discontinue the
transfer of depositary receipts, will suspend the distribution of dividends to
the holders of depositary receipts, and will not give any further notices (other
than notice of such termination) or perform any further acts under the Deposit
Agreement except that the Depositary will
16
continue to collect dividends and other distributions pertaining to the
preferred stock, will sell rights, preferences or privileges as provided in the
Deposit Agreement and will continue to deliver preferred stock certificates
together with such dividends and distributions and the net proceeds of any sales
of rights, preferences, privileges, or other property in exchange for depositary
receipts surrendered. At any time after the expiration of two years from the
date of termination, the Depositary may sell the preferred stock and hold the
proceeds of such sale, without interest, for the benefit of the holders of
depositary receipts who have not then surrendered their depositary receipts.
After making such sale, the Depositary will be discharged from all obligations
under the Deposit Agreement except to account for such proceeds. In the event
the Deposit Agreement is terminated, Boise Cascade will use its best efforts to
list the underlying shares of preferred stock on any stock exchange on which
such depositary shares were listed.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be unsecured general obligations of Boise Cascade
and may include:
- senior debt securities, to be issued under the Senior Indenture;
- subordinated debt securities, to be issued under the Subordinated
Indenture; or
- junior subordinated debt securities, to be issued under the Junior
Subordinated Indenture.
The junior subordinated debt securities will be issued solely to one or more
of the Trusts and will be purchased by the Trusts using proceeds from issuances
of trust securities.
This section summarizes the material and general terms of the debt
securities we may offer. The prospectus supplement relating to any particular
debt securities offered will indicate whether the debt securities are senior
debt securities, subordinated debt securities or junior subordinated debt
securities, and will describe the specific terms of the debt securities, which
may be in addition to or different from the general terms summarized in this
section. The summary in this section and in any prospectus supplement does not
describe every aspect of the Senior Indenture, Subordinated Indenture or Junior
Subordinated Indenture or the debt securities, and is subject to and qualified
in its entirety by reference to all the provisions of the applicable indenture
and the debt securities. The forms of the Senior Indenture, Subordinated
Indenture and Junior Subordinated Indenture and the forms of the debt securities
are or will be filed as exhibits to or incorporated by reference in the
registration statement.
PROVISIONS APPLICABLE TO ALL DEBT SECURITIES
The indentures do not limit the amount of debt securities which may be
issued under the Indenture and provide that debt securities may be issued in
principal amounts which may be authorized from time to time. The debt securities
may be issued from time to time in one or more series. Unless otherwise
specified in the prospectus supplement, the senior debt securities will be
unsecured and will rank equally with all other unsecured and unsubordinated
indebtedness of Boise Cascade. The subordinated debt securities and the junior
subordinated debt securities will be subordinated in right of payment to the
prior payment in full of the Senior Indebtedness of Boise Cascade, as described
below under "Subordination of Subordinated Debt Securities" and in the
applicable prospectus supplement.
Each prospectus supplement will describe the following terms of the offered
debt securities:
- The title;
- Any limit on the aggregate principal amount;
- The date(s) the principal is payable;
- The interest rate(s), if any, and the date(s) from which the interest
accrues;
17
- The dates on which the interest, if any, is payable and the regular record
dates for the interest payment dates;
- Whether the offered debt securities are redeemable at our option and the
redemption price(s) and other redemption terms and conditions;
- Whether we are obligated to redeem or purchase the offered debt securities
according to any sinking fund or similar provision or at the holder's
option and the price(s), period(s), and terms and conditions of that
redemption or purchase obligation;
- Whether the offered debt securities are subordinated debt securities and
the terms of subordination;
- Whether the offered debt securities are junior subordinated debt
securities;
- If other than the principal amount, the portion of the principal amount
payable if the maturity of the offered debt securities is accelerated;
- Whether the provisions relating to Satisfaction, Discharge, and Defeasance
described below apply;
- If other than United States Dollars, the currency or currencies of payment
of principal and any premium and interest (which may include the Euro);
- If payments are based on an index, the manner in which the amount of
principal payments and any premium and interest is to be determined;
- Boise Cascade's right, if any, to defer payment of interest and the
maximum length of any deferral period;
- If applicable, the terms of any right to convert or exchange the offered
debt securities into common stock or other securities of Boise Cascade;
- If other than denominations of $1,000 and any integral multiple of $1,000,
the denominations in which offered debt securities of the series will be
issuable;
- Whether the offered debt securities will be issued in whole or in part in
the form of a global security; the terms and conditions, if any, upon
which the global security may be exchanged in whole or in part for other
definitive debt securities; and the depositary for the global security,
which depositary must be a clearing agency registered under the Exchange
Act;
- Any authenticating or paying agents, registrars, conversion agents or any
other agents with respect to the offered debt securities; and
- Any other terms.
Debt securities may be issued and sold at a substantial discount below their
principal amount. The prospectus supplement will describe any special United
States federal income tax consequences and other considerations which apply to
debt securities issued at a discount or to any offered debt securities
denominated or payable in a foreign currency or currency unit.
MODIFICATION AND WAIVER
Boise Cascade and the trustee may amend each indenture with the consent of
the holders of not less than 66 2/3% in aggregate principal amount of the
outstanding debt securities of each series issued under the indenture. However,
Boise Cascade and the trustee may not, without the consent of the holder of each
debt security affected:
- Change the stated maturity of the principal of or any installment of the
principal of or interest, if any, on any such debt security;
- Reduce the principal amount of, the rate of interest, if any, on or any
premium payable upon the redemption of, any such debt security;
- Reduce the principal amount due upon acceleration of the maturity of an
original issue discount security;
- Change the place or currency of payment of principal of (or premium or
interest, if any, on) any such debt security;
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- Impair the right to institute suit to enforce any payment on or after the
stated maturity or redemption date of such debt security;
- Change the indenture to permit amendments with the consent of the holders
of less than 66 2/3% in principal amount of debt securities of any
affected series; or
- Modify the above requirements or reduce the percentage of outstanding debt
securities necessary to waive compliance with certain provisions of the
indenture or to waive certain defaults and their consequences.
The holders of a majority in aggregate principal amount of the outstanding
securities of any series may waive, insofar as that series is concerned,
compliance by Boise Cascade with certain restrictive provisions of the
indenture.
SATISFACTION, DISCHARGE, AND DEFEASANCE PRIOR TO MATURITY OR REDEMPTION
DEFEASANCE OF ANY SERIES
If Boise Cascade deposits with the Trustee, in trust, at or before maturity
or redemption of the outstanding debt securities of any series, money or direct
obligations of the United States of America or obligations the principal of and
interest on which are guaranteed by the United States of America in such amounts
and maturing at such times that the proceeds of such obligations to be received
upon the respective maturities and interest payment dates of such obligations
will provide funds sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay when due the principal of (and premium,
if any) and each installment of principal of (and premium, if any) and interest
on any series of outstanding debt securities at the stated maturity of such
principal or installment of principal or interest, as the case may be, then
Boise Cascade may omit to comply with certain terms of the indenture with
respect to that series of debt securities, including the restrictive covenants
contained in the Senior Indenture. Further, the events of default described in
clauses (3) and (4) under "Events of Default" below shall not apply. Defeasance
of debt securities of any series is subject to the satisfaction of certain
conditions, including among others:
1. The absence of an event of default or event which with notice or lapse
of time would become an event of default at the date of the deposit;
2. The perfection of the holders' interest in such deposit; and
3. That such deposit will not result in a breach of, or constitute a
default under, any instrument by which Boise Cascade is bound.
SATISFACTION AND DISCHARGE OF ANY SERIES
Upon the deposit of money or securities as contemplated in the preceding
paragraph and the satisfaction of certain other conditions, Boise Cascade may
also omit to comply with its obligation to pay the principal of (and premium, if
any) and interest on a particular series of debt securities. Any events of
default with respect to that series will not apply, and thereafter, the holders
of debt securities of such series will be entitled only to payment out of the
money or securities deposited with the Trustee. Such conditions include among
others:
1. Except in certain limited circumstances involving a deposit made within
one year of maturity or redemption:
(i) no event of default or event which, with notice or lapse of
time, would become an event of default exists at the date of deposit or
on the 91st day thereafter, and
(ii) Boise Cascade delivers to the trustee an opinion of nationally
recognized tax counsel that holders of the debt securities of such
series will not recognize income, gain, or loss for federal income tax
purposes as a result of such deposit and the satisfaction, discharge,
and defeasance and will be subject to federal income tax in the same
amounts, in the same manner, and at the same times as would have
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been the case if such deposit and defeasance had not occurred, and
2. Boise Cascade receives an opinion of counsel stating that satisfaction
and discharge will not violate the rules of any nationally recognized
securities exchange on which debt securities of that series are listed.
FEDERAL INCOME TAX CONSEQUENCES
Under current federal income tax law, the deposit and defeasance described
above under "Defeasance of any Series" will not result in a taxable event to any
holder of debt securities or otherwise affect the federal income tax
consequences of an investment in debt securities of any series.
The federal income tax treatment of the deposit and defeasance described
above under "Satisfaction and Discharge of any Series" is not clear. A deposit
and defeasance is likely to be treated as a taxable exchange of the debt
securities for beneficial interests in the trust consisting of the deposited
money or securities. In that event, a holder of debt securities would be
required to recognize gain or loss equal to the difference between the holder's
adjusted basis for the debt securities and the fair market value of the holder's
beneficial interest in such trust. Thereafter, such holder would be required to
include in income a share of the income, gain, and loss of the trust. As
described above, except in certain limited circumstances involving a deposit
made within one year of maturity or redemption, it is a condition to such a
deposit and defeasance that Boise Cascade obtain an opinion of tax counsel to
the effect that such deposit and defeasance will not alter the holders' tax
consequences that would have been applicable in the absence of the deposit and
defeasance. Purchasers of the debt securities should consult their own advisers
with respect to the tax consequences to them of such deposit and defeasance,
including the applicability and effect of tax laws other than federal income tax
law.
EVENTS OF DEFAULT
The indentures define an "event of default" with respect to debt securities
of each series as one or more of the following events. The events described in
clauses (4) and (5) are events of default only under the Senior Indenture. The
prospectus supplement for any series of debt securities may set forth different
events of default:
1. Default in the payment of any interest on any debt security of that
series for 30 days after becoming due;
2. Default in the payment of principal of or any premium on any security of
that series when due;
3. Default in the performance, or breach, of any other covenant or warranty
of Boise Cascade in the indenture for 90 days after notice;
4. Involuntary acceleration of the maturity of indebtedness in excess of
$5,000,000 for money borrowed by Boise Cascade or any of its Restricted
Subsidiaries, if the acceleration is not rescinded or annulled, or the
indebtedness is not discharged, within 10 days after notice;
5. Entry of certain court orders requiring Boise Cascade or any Restricted
Subsidiary to make payments exceeding $1,000,000 and where 60 days have
passed since the entry of the order without its having been satisfied or
stayed;
6. Certain events of bankruptcy, insolvency, or reorganization; and
7. Any other Event of Default provided with respect to debt securities of
that series issued under the indenture.
If any Event of Default described in clauses (1), (2), or (7) shall occur
and be continuing, then either the Trustee or the holders of at least 25% (or if
the debt securities of the series are original issue discount securities, such
portion of the principal amount as may be specified in the terms of that series)
in principal amount of the outstanding securities of that series may
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accelerate the maturity of the securities of that series. If an event of default
described in clauses (3), (4), (5), or (6) above shall occur and be continuing
under an indenture, then either the Trustee or the holders of at least 25% (or
if the debt securities are original issue discount securities, such portion of
the principal amount as may be specified in the terms of that series) in
principal amount of the outstanding debt securities issued under the indenture
may accelerate the maturity of all outstanding debt securities.
The indentures provide that the trustee, within 90 days after a default with
respect to any series of debt securities, shall give to the holders of
securities of that series notice of all uncured defaults known to it (the term
default to mean the events specified above without grace periods); provided
however that, except in the case of default in the payment of principal of (or
premium, if any) or interest, if any, on any debt security of such series, the
trustee shall be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of the holders
of debt securities of such series.
Each indenture requires Boise Cascade to furnish to the trustee an annual
statement by certain officers that to the best of their knowledge Boise Cascade
is not in default of any of its obligations under the indenture or, if there has
been a default, specifying each such default.
The holders of a majority in principal amount of the outstanding debt
securities of any series affected will have the right, subject to certain
limitations, 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 and to
waive certain defaults.
The indentures provide that if a default occurs and is continuing, the
trustee shall exercise such of its rights and powers under the indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of that person's
own affairs.
Subject to certain provisions, the trustee will not be obligated to exercise
any of its rights or powers under the indentures at the request of any of the
holders of securities unless they shall have offered to the trustee reasonable
security or indemnity against the costs, expenses, and liabilities which the
trustee might incur in compliance with such request.
MERGER OR CONSOLIDATION
The indentures provide that no consolidation or merger of Boise Cascade with
or into any other corporation and no conveyance or transfer of its property
substantially as an entirety to another corporation may be made unless:
- The surviving corporation or acquiring entity is a corporation organized
and existing under the laws of the United States of America, any state
thereof, or the District of Columbia and will expressly assume the payment
of principal of and any premium and interest on the securities and the
performance of covenants in the indenture;
- Immediately after giving effect to such transaction, no event of default,
and no event which after notice or lapse of time, or both, would become an
event of default, shall have happened and be continuing; and
- Boise Cascade has delivered the required officers' certificate and opinion
of counsel to the Trustee.
OUR RELATIONSHIP WITH THE TRUSTEE
U.S. Bank Trust National Association is the indenture trustee under the
Senior Indenture. The applicable prospectus supplement will specify the trustee
under the Subordinated Indenture or the Junior Subordinated Indenture, as the
case may be. We maintain a deposit account and conduct other banking
transactions with U.S. Bank Trust National Association in the normal course of
our business. These transactions include U.S. Bank Trust National Association
serving as trustee with respect to some of our industrial revenue bonds. As of
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March 1, 1999, U.S. Bank Trust National Association is also the trustee under
indentures pursuant to which our 9.90% Notes Due 2000, 9.85% Notes Due 2002,
9.45% Debentures Due 2009, 7.35% Debentures Due 2016, and $352,605,000
(principal amount) of Medium-Term Notes, Series A are outstanding.
GOVERNING LAW
The Senior Indenture, the Subordinated Indenture, the Junior Subordinated
Indenture and the debt securities shall be governed by and construed under New
York law except to the extent that the Trust Indenture Act is applicable.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, Boise
Cascade will pay interest on any debt securities on any interest payment date to
the person in whose name such debt securities (or one or more predecessor
securities) are registered at the close of business on the regular record date
for such interest.
Principal of and any premium and interest on the debt securities of a
particular series will be payable at the office of the paying agents designated
by Boise Cascade, except that unless otherwise indicated in the applicable
prospectus supplement, interest payments may be made by check mailed to the
holder. Unless otherwise indicated in a prospectus supplement, the corporate
trust office of the indenture trustee in The City of New York will be designated
as Boise Cascade's paying agent for payments with respect to debt securities of
each series. Any other paying agents initially designated by Boise Cascade for
the debt securities of a particular series will be named in the applicable
prospectus supplement. Boise Cascade may designate itself as a paying agent.
Boise Cascade will be required to maintain a paying agent in each place of
payment for the debt securities of a particular series.
All moneys paid by Boise Cascade to a paying agent or the indenture trustee
for the payment of the principal of or any premium or interest on any debt
securities which remains unclaimed at the end of three years after such
principal, premium or interest has become due and payable will be repaid to
Boise Cascade, and the holder of the security thereafter may look only to Boise
Cascade for payment.
PROVISIONS APPLICABLE TO SENIOR DEBT SECURITIES--MATERIAL COVENANTS
CERTAIN DEFINITIONS APPLICABLE TO COVENANTS
"Attributable Debt" means the total net amount of rent required to be paid
during the remaining primary term of any particular lease under which any person
is at the time liable, discounted at the rate per annum equal to the weighted
average interest rate borne by the securities outstanding under the applicable
indenture.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting:
- all liabilities, other than deferred income taxes, Funded Debt, and
shareholders' equity; and
- all goodwill, trade names, trademarks, patents, organization expenses, and
other like intangibles of Boise Cascade and its consolidated subsidiaries.
"Funded Debt" means:
- all indebtedness for money borrowed having a maturity of more than 12
months from the date as of which the determination is made or having a
maturity of 12 months or less but by its terms being renewable or
extendible beyond 12 months from such date at the option of the borrower;
and
- rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles.
"Principal Property" means:
- any mill, converting plant, manufacturing plant, or other facility owned
by Boise Cascade or any Restricted Subsidiary of Boise Cascade which is
located within the present 50 states of the United States and the gross
book value of which (without
22
deduction of any depreciation reserves) on the date as of which the
determination is being made exceeds 3% of Consolidated Net Tangible
Assets; and
- Timberlands, in each case other than properties or any portion of a
particular property which in the opinion of the Board of Directors is not
of material importance to Boise Cascade's business or other than minerals
or mineral rights.
"Restricted Subsidiary" means a Subsidiary of Boise Cascade substantially
all the property of which is located, or substantially all of the business of
which is carried on, within the present 50 states of the United States and which
owns a Principal Property, excluding however a Subsidiary of Boise Cascade which
is primarily engaged in the development and sale or financing of real property.
"Subsidiary" of Boise Cascade means a corporation more than 50% of the
voting stock of which is, directly or indirectly, owned by Boise Cascade, one or
more Subsidiaries of Boise Cascade, or Boise Cascade and one or more
Subsidiaries.
RESTRICTIONS ON SECURED DEBT
The Senior Indenture provides that neither Boise Cascade nor any Restricted
Subsidiary shall incur, issue, assume, or guarantee any loans, whether or not
evidenced by any evidence of indebtedness for money borrowed ("Debt") secured by
a mortgage, pledge, or lien ("Mortgage") on any Principal Property of Boise
Cascade or any Restricted Subsidiary, or on any share of stock or Debt of any
Restricted Subsidiary, unless Boise Cascade secures or causes such Restricted
Subsidiary to secure the securities issued under the Senior Indenture equally
and ratably with (or, at Boise Cascade's option, prior to) such secured Debt,
unless
(x) the aggregate amount of all such secured Debt, together with
(y) all Attributable Debt of Boise Cascade and its Restricted Subsidiaries
with respect to sale and leaseback transactions involving Principal
Properties (with the exception of such transactions which are excluded
as described in "Restrictions on Sales and Leasebacks" below),
would not exceed 10% of Consolidated Net Tangible Assets. The above restriction
does not apply to, and there will be excluded from secured Debt in any
computation under such restriction, Debt secured by:
- Mortgages on property of, or on any shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
- Mortgages in favor of Boise Cascade or a Restricted Subsidiary;
- Mortgages in favor of governmental bodies to secure progress or advance
payments;
- Mortgages on property, shares of capital stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation), and purchase money and construction Mortgages which are
entered into within specified time limits;
- Mortgages securing industrial revenue or pollution control bonds;
- Mortgages on Timberlands or in connection with arrangements under which
Boise Cascade or any Restricted Subsidiary is obligated to cut or pay for
timber; or
- Any extension, renewal, or refunding of any Mortgage referred to in the
foregoing clauses.
The Senior Indenture also provides that no consolidation or merger of Boise
Cascade with or into any other corporation and no conveyance of its property
substantially as an entirety to another corporation may be made if, as a result,
any Principal Property of Boise Cascade or any Restricted Subsidiary would
become subject to a Mortgage which is not expressly excluded from the
restrictions or permitted by the provisions of the "Restrictions on Secured
Debt" covenant unless all the outstanding debt securities are
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secured by a lien upon such Principal Property equal with (or, at Boise
Cascade's option, prior to) that of the Debt secured by such Mortgage.
RESTRICTIONS ON SALES AND LEASEBACKS
The Senior Indenture also provides that neither Boise Cascade nor any
Restricted Subsidiary may enter into any sale and leaseback transaction
involving any Principal Property, unless
(x) the aggregate amount of all Attributable Debt of Boise Cascade and its
Restricted Subsidiaries with respect to such transaction plus
(y) all secured Debt (with the exception of secured Debt which is excluded
as described in "Restrictions on Secured Debt" above) would not exceed
10% of Consolidated Net Tangible Assets.
This restriction does not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, any sale and
leaseback transaction if:
- The lease is for a period, including renewal rights, not in excess of
three years;
- The sale or transfer of the Principal Property is made within a specified
period after its acquisition or construction;
- The lease secures or relates to industrial revenue or pollution control
bonds;
- The transaction is between Boise Cascade and a Restricted Subsidiary or
between Restricted Subsidiaries; or
- Boise Cascade or such Restricted Subsidiary, within 180 days after the
sale is completed, applies to the retirement of Funded Debt of Boise
Cascade or a Restricted Subsidiary, or to the purchase of other property
which will constitute Principal Property of a value at least equal to the
value of the Principal Property leased, an amount not less than the
greater of (i) the net proceeds of the sale of the Principal Property
leased or (ii) the fair market value of the Principal Property leased.
The amount to be applied to the retirement of Funded Debt shall be reduced
by (x) the principal amount of any debentures or notes (including securities
issued under the indenture) of Boise Cascade or a Restricted Subsidiary
surrendered within 180 days after such sale to the applicable trustee for
retirement and cancellation and (y) the principal amount of Funded Debt, other
than items referred to in the preceding clause (x), voluntarily retired by Boise
Cascade or a Restricted Subsidiary within 180 days after such sale.
PROVISIONS APPLICABLE TO SUBORDINATED DEBT SECURITIES--SUBORDINATION
The subordinated debt securities will be subordinated in right of payment,
as set forth in the Subordinated Indenture, to the prior payment in full of all
existing and future Senior Indebtedness of Boise Cascade and will be senior in
right of payment to any payment on junior subordinated debt securities. "Senior
Indebtedness" generally means any debt incurred, assumed or guaranteed by Boise
Cascade, whether presently outstanding or incurred, assumed or guaranteed in the
future, including:
- the principal of, and premium, if any, on such debt;
- interest on such debt, including interest accruing after the filing of a
petition initiating any proceeding pursuant to any bankruptcy law, but
only to the extent allowed or permitted to the holder of such debt against
the bankruptcy or any other insolvency estate of Boise Cascade in such
proceeding;
- any accrued original issue discount on such debt;
- other amounts due on or in connection with such debt; and
- all renewals, extensions and refundings of any such debt (as defined
below).
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However, the following will not constitute Senior Indebtedness:
- any debt which expressly provides (i) that such debt shall not be senior
in right of payment to the subordinated debt securities, or (ii) that such
debt shall be subordinated to any other debt of Boise Cascade, unless such
debt expressly provides that such debt shall be senior in right of payment
to the subordinated debt securities;
- any debt of Boise Cascade in respect of the subordinated debt securities;
- any debt or liability for compensation to employees, for goods or
materials purchased in the ordinary course of business or for services;
- any debt of Boise Cascade to any subsidiary for money borrowed or advanced
from such subsidiary; and
- any liability for federal, state, local or other taxes owed or owing by
Boise Cascade.
"Debt" means the following:
- All indebtedness for borrowed money, whether or not the recourse of the
lender is to the whole of the assets of the borrower or only to a portion
of those assets, and including all indebtedness evidenced by notes, bonds,
debentures or other securities sold for money;
- All indebtedness incurred or assumed in the acquisition of any business,
real property or other assets, except goods and materials acquired in the
ordinary course of the conduct of the acquirer's usual business;
- All capital lease obligations;
- Hedging obligations;
- Guarantees of indebtedness described in the preceding four clauses of any
other person; and
- Renewals, extensions, refundings, deferrals, restructurings, amendments
and modifications of any such indebtedness (including, without limitation,
exchange offers), obligation or guarantee.
Because of the subordination described in this section, in the event of
insolvency, the holders of subordinated debt securities are required to pay over
their share of any distribution of the assets of Boise Cascade to the indenture
trustee in bankruptcy, receiver or other person distributing the assets of Boise
Cascade. Such person will apply the distribution to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all holders of
Senior Indebtedness in full. In addition, unsecured creditors of Boise Cascade
who are not holders of subordinated debt securities or holders of Senior
Indebtedness of Boise Cascade may recover less, ratably, than holders of Senior
Indebtedness of Boise Cascade and may recover more, ratably, than the holders of
subordinated debt securities.
If a payment default on any Senior Indebtedness has occurred and is
continuing, Boise Cascade may not pay any principal of, premium, if any, or
interest on any subordinated debt securities, nor may Boise Cascade acquire any
subordinated debt securities. A "payment default" is a default in the payment of
any principal of or premium, if any, or interest on Senior Indebtedness when
due, whether at the stated maturity of any such payment or by declaration of
acceleration, call for redemption, or otherwise. Any other default or event of
default with respect to any Senior Indebtedness which permits the holders of or
the trustee for the Senior Indebtedness to declare the Senior Indebtedness due
and payable prior to the date on which it would otherwise become due and payable
is referred to as "non-monetary default."
If a non-monetary default has occurred and is continuing, and Boise Cascade
and the trustee for such Senior Indebtedness have received notice of such
occurrence from any holder of the Senior Indebtedness, then Boise Cascade may
not pay any principal of, premium, if any, or interest on any subordinated debt
securities, nor may Boise Cascade acquire any subordinated debt securities in
the corresponding "payment blockage period." A payment blockage period
25
will commence on the date of the receipt of the notice, and end on the earlier
of:
- the date when the non-monetary default has been cured or waived or ceased
to exist, or Boise Cascade has discharged all the Senior Indebtedness to
which the non-monetary default relates, and
- the 179(th) day after the date of the receipt of the notice.
However, in no event may more than one payment blockage period begin during any
360-day period. There will also be a period of at least 181 days during each
360-day period when no payment blockage period is in effect. In addition, a
non-monetary default that existed or was continuing on the date a payment
blockage period begins may not be made the basis of a subsequent payment
blockage period, unless the non-monetary default has been cured for at least 90
consecutive days. However, if a breach of any financial covenant occurs after a
payment blockage period and continues for a period that gives rise to an event
of default, then such breach constitutes a new non-monetary default even if it
is a breach of the same provision under which a prior event of default existed.
If Boise Cascade fails to make any payment on the subordinated debt
securities because of the subordination provisions described in this subsection,
the failure may still be deemed an event of default with respect to the
subordinated debt securities. Once the payment blockage period terminates, Boise
Cascade will resume making any and all required payments in respect of the
subordinated debt securities, including any missed payments.
The Subordinated Indenture will not limit the amount of subordinated debt
securities which Boise Cascade may issue, nor will it limit Boise Cascade from
issuing any other secured or unsecured debt. The Subordinated Indenture will not
limit or prohibit the incurrence of additional Senior Indebtedness, which may
include indebtedness that is senior to the subordinated debt securities, but
subordinate to other obligations of Boise Cascade. The senior debt securities,
when issued, will constitute Senior Indebtedness. The prospectus supplement will
further describe the provisions, if any, applicable to the subordination of the
subordinated debt securities of a particular series.
PROVISIONS APPLICABLE TO THE JUNIOR SUBORDINATED DEBT SECURITIES
EVENTS OF DEFAULT
In addition to the events described above under "Provisions Applicable to
All Debt Securities--Events of Default" applicable to all debt securities, the
following will be an event of default under the Junior Subordinated Indenture
with respect to any series of junior subordinated debt securities issued:
- the voluntary or involuntary dissolution, winding up or termination of the
Trust that owns the series of junior subordinated debt securities, except
in connection with
(1) the distribution of such junior subordinated debt securities to
holders of trust securities of the Trust;
(2) the redemption of all of the trust securities of the Trust; and
(3) mergers, consolidations or amalgamations permitted by the
amended declaration of the Trust.
The holders of at least a majority in aggregate liquidation amount of the
trust preferred securities of the Trust may waive any default or event of
default with respect to such series and its consequences, except defaults or
events of default regarding:
- payment of principal, premium, if any, or interest; or
- certain covenants containing limitations on Boise Cascade's ability to pay
dividends and make payments on debt securities in certain circumstances.
Any such waiver shall cure such default or event of default. If, under the
amended declaration of a Trust, an event of default has occurred and is
attributable to the failure of Boise Cascade to pay principal, premium, if any,
or interest on, such junior subordinated debt securities, then each holder of
the trust
26
preferred securities of the Trust may sue Boise Cascade or seek other remedies,
to force payment to such holder of the principal of, premium, if any, or
interest on, such junior subordinated debt securities having a principal amount
equal to the aggregate liquidation amount of the trust preferred securities held
by such holder.
MODIFICATION OF JUNIOR SUBORDINATED INDENTURE; WAIVER
Under the Junior Subordinated Indenture, Boise Cascade and the indenture
trustee may change the rights of holders of a series of junior subordinated debt
securities with the written consent of the holders of at least 66 2/3% in
aggregate liquidation amount of the trust preferred securities of the Trust
holding the outstanding junior subordinated debt securities of each series that
is affected. Any change will be subject to the limitations described above under
"Modification and Waiver" applicable to the other debt securities.
If the property trustee of the Trust, as holder of junior subordinated debt
securities, is required to consent to any amendment, modification or termination
of the Junior Subordinated Indenture, the property trustee will request
directions from the holders of the trust preferred securities of the applicable
Trust.
SUBORDINATION OF JUNIOR SUBORDINATED DEBT SECURITIES
The junior subordinated debt securities will be unsecured and will be
subordinate and junior in priority of payment to certain of Boise Cascade's
other indebtedness to the extent described in a prospectus supplement. The
Junior Subordinated Indenture will not limit the amount of junior subordinated
debt securities which Boise Cascade may issue, nor does it limit Boise Cascade
from issuing any other secured or unsecured debt.
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DESCRIPTION OF WARRANTS
Boise Cascade may issue warrants to purchase common stock, preferred stock,
debt securities or any combination of the above. The warrants may be issued
independently or together with any other securities and may be attached to or
separate from the other securities. Each series of warrants will be issued under
a separate warrant agreement to be entered into between Boise Cascade and a bank
or trust company, as warrant agent.
This section summarizes the material and general terms of the warrants that
we may offer. The prospectus supplement relating to a particular series of
warrants will describe the specific terms of the series, which may be in
addition to or different from the general terms summarized in this section. The
summary in this section and in any prospectus supplement does not describe every
aspect of the warrants and is subject to and qualified in its entirety by
reference to all the provisions of the warrant agreement and the certificates
representing the warrant. The forms of the warrant agreement and the warrant
certificates are or will be filed as exhibits or incorporated by reference in
the registration statement.
The prospectus supplement relating to a series of warrants will describe the
specific terms of the warrants including the following:
- the title of the warrants;
- the aggregate number of the warrants;
- the price or prices at which the warrants will be issued and the currency
in which the price for the warrants may be paid;
- the designation and terms of the securities purchasable upon the exercise
of the warrants;
- the price at which and the currency in which the securities purchasable
upon exercise of the warrants may by purchased;
- the date on which the right to exercise the warrants shall commence and
the date on which the right shall expire;
- whether the warrants are exercisable by payment of cash, surrender of
other securities, or both;
- provisions for changes to or adjustments in the exercise price of the
warrants;
- if applicable, the minimum or maximum amount of the warrants which may be
exercised at any one time;
- if applicable, the designation and terms of the other securities with
which the warrants are issued and the number of the warrants issued with
each such other security;
- if applicable, the date on and after which the warrants and the related
other securities will be separately transferable;
- whether the warrants will be issued in registered form or bearer form;
- information with respect to book-entry procedures, if any;
- if applicable, a discussion of certain United States federal income tax
considerations; and
- any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
Warrant certificates will be exchangeable for new warrant certificates of
different denominations, and warrants may be exercised, at the corporate trust
office of the warrant agent or any other office indicated in the prospectus
supplement. Prior to the exercise of their warrants, holders of warrants to
purchase debt securities will not be entitled to payments of principal of
(premium, if any), or interest, if any, on, the debt securities purchasable upon
such exercise.
Warrants may be exercised as set forth in the prospectus supplement relating
to those warrants. Upon receipt of payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant Agent
or any other office indicated in
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the prospectus supplement, Boise Cascade will, as soon as practicable, forward
the securities purchasable upon such exercise. If less than all of the warrants
represented by such warrant certificate are exercised, a new warrant certificate
will be issued for the remaining warrants.
DESCRIPTION OF THE PURCHASE CONTRACTS AND THE UNITS
Boise Cascade may issue purchase contracts, including contracts obligating
holders to purchase from Boise Cascade, and Boise Cascade to sell to the
holders, a specified number of shares of common stock or preferred stock at a
future date or dates. The consideration per share of common stock or preferred
stock may be fixed at the time the purchase contracts are issued or may be
determined by reference to a specific formula set forth in the purchase
contracts. The purchase contracts may be issued separately or as a part of
units, including, but not limited to, adjustable conversion-rate equity security
units. A unit may consist of a purchase contract and debt securities, trust
securities or debt obligations of third parties, including U.S. Treasury
securities, securing the holders' obligations to purchase the common stock or
preferred stock under the purchase contracts. The purchase contracts may require
Boise Cascade to make periodic payments to the holders of the units or vice
versa, and such payments may be unsecured or refunded on some basis. The
purchase contracts may require holders to secure their obligations under the
purchase contracts in a specified manner.
The prospectus supplement relating to any particular purchase contracts
and/or units offered will describe the specific terms of the purchase contracts
and/or units, which may be in addition to or different from the general terms
summarized above in this section. You should read the specific description in
the prospectus supplement. In addition, the forms of the purchase contracts and
the units are or will be filed as exhibits to or incorporated by reference in
the registration statement.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
GENERAL
The amended declaration of each Trust authorizes the respective trustees to
issue, on behalf of the Trust, one series of trust preferred securities. Each
Trust will use the proceeds from the sale of the trust preferred securities to
purchase a series of junior subordinated debt securities issued by Boise
Cascade. The property trustee will hold these junior subordinated debt
securities in trust for the benefit of the holders of such trust preferred
securities.
This section summarizes the material and general terms of the preferred
securities that the Trusts may offer. The prospectus supplement relating to any
particular preferred securities offered by a Trust will describe the specific
terms of the preferred securities, which may be in addition to or different from
the general terms summarized in this section. The summary in this section and in
any prospectus supplement does not describe every aspect of the preferred
securities offered and is subject to and qualified in its entirety by reference
to all the provisions of the amended declarations and the preferred securities.
The forms of the amended declarations and the preferred securities are or will
be filed as exhibits to or incorporated by reference in the registration
statement.
Boise Cascade will guarantee the payments of distributions and payments on
redemption or liquidation with respect to the trust preferred securities, but
only to the extent the Trust has funds available to make those payments and has
not made the payments. The trust preferred securities guarantee by Boise Cascade
is described in more detail below under "Description of the Trust Preferred
Securities Guarantee."
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The assets of each Trust available for distribution to the holders of its
trust preferred securities will be limited to payments from Boise Cascade under
the series of junior subordinated debt securities held by the Trust. If Boise
Cascade fails to make a payment on the junior subordinated debt securities, the
Trust will not have sufficient funds to make related payments, including
distributions, on its trust preferred securities.
The trust preferred securities guarantee, when taken together with Boise
Cascade's obligations under the series of junior subordinated debt securities,
the Junior Subordinated Indenture and the amended declaration of the Trust, will
provide a full and unconditional guarantee of amounts due on the trust preferred
securities issued by each Trust.
This section summarizes the material and general terms of the preferred
securities that the Trusts may offer. The prospectus supplement relating to any
particular preferred securities offered by a Trust will describe the specific
terms of the preferred securities, which may be in addition to or different from
the general terms summarized in this section. In particular, the prospectus
supplement will describe:
- the name of such trust preferred securities;
- the designation of the trust preferred securities;
- the dollar amount and number of trust preferred securities issued;
- the annual distribution rate(s) or method of determining such rate(s), the
payment date(s) and the record dates used to determine the holders who are
to receive distributions;
- the date(s) or the method to determine the date(s) from which
distributions shall be cumulative;
- the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions for which such trust preferred
securities shall be purchased or redeemed, in whole or in part;
- the terms and conditions, if any, upon which the applicable series of
junior subordinated debt securities and the related trust preferred
securities guarantee may be distributed to holders of the trust preferred
securities upon liquidation, dissolution, termination or winding up;
- any voting rights of the trust preferred securities other than those
described in this section;
- any securities exchange on which the trust preferred securities will be
listed;
- whether the trust preferred securities are to be issued in book-entry form
and represented by one or more global certificates, and if so, the
depositary for the global certificates and the specific terms of the
depositary arrangements;
- any other relevant rights, preferences, privileges, limitations or
restrictions of such trust preferred securities; and
- any applicable United States Federal income tax considerations.
The summary in this section and in any prospectus supplement does not
describe every aspect of the preferred securities offered and is subject to and
qualified in its entirety by reference to all the provisions of the amended
declarations and the preferred securities. The forms of the amended declarations
and the preferred securities are or will be filed as exhibits to or incorporated
by reference in the registration statement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
The amended declaration of each Trust states that the Trust shall be
dissolved:
- on the expiration of the term of the Trust;
- upon the bankruptcy of Boise Cascade;
- upon a change in law requiring the Trust to register as an investment
company under the Investment Company Act of 1940;
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- upon the filing of a certificate of dissolution or its equivalent with
respect to Boise Cascade;
- upon the election of Boise Cascade to terminate the trust and distribute
the related junior subordinated debt securities directly to the holders of
the trust securities;
- upon the redemption, conversion or exchange of all of the trust securities
of the Trust; or
- upon entry of a court order for the dissolution of Boise Cascade or the
Trust.
In the event of a dissolution, after the Trust pays all amounts owed to
creditors, the holders of the trust securities will be entitled to receive:
- cash equal to the aggregate liquidation amount of each trust security
specified in an accompanying prospectus supplement, plus accumulated and
unpaid distributions to the date of payment; or
- junior subordinated debt securities in an aggregate principal amount equal
to the aggregate liquidation amount of the trust securities.
If a Trust cannot pay the full amount due on its trust securities because
insufficient assets are available for payment, then the amounts payable by the
Trust on its trust securities shall be paid pro rata. However, if an event of
default under the related indenture has occurred, the total amounts due on the
trust preferred securities will be paid before any distribution on the trust
common securities.
EVENTS OF DEFAULT
An event of default under the Junior Subordinated Indenture relating to a
series of junior subordinated debt securities is an event of default under the
amended declaration of the Trust that owns those junior subordinated debt
securities. We have described these events of default under the sections
entitled "Description Debt Securities--Provisions Applicable to All Debt
Securities--Events of Default" and "--Provisions Applicable to Junior
Subordinated Debt Securities--Events of Default."
Boise Cascade and the regular trustees of each Trust must file annually with
the property trustee for the Trust a certificate stating whether or not they are
in compliance with all the applicable conditions and covenants under the related
amended declaration.
Upon the occurrence of an event of default, the property trustee of the
Trust, as the sole holder of the junior subordinated debt securities held by the
Trust, will have the right under the Junior Subordinated Indenture to declare
the principal of, premium, if any, and interest on such junior subordinated debt
securities to be immediately due and payable.
If a property trustee fails to enforce its rights under the amended
declaration or the Junior Subordinated Indenture then, to the fullest extent
permitted by law, and subject to the terms of the amended declaration and the
Junior Subordinated Indenture, any holder of trust preferred securities may sue
Boise Cascade, or seek other remedies, to enforce the property trustee's rights
under the amended declaration or the Junior Subordinated Indenture without first
instituting a legal proceeding against such property trustee or any other
person.
If Boise Cascade fails to pay principal, premium, if any, or interest on a
series of junior subordinated debt securities when payable, then a holder of
such trust preferred securities may directly sue Boise Cascade or seek other
remedies, to collect its pro rata share of payments owned.
REMOVAL AND REPLACEMENT OF TRUSTEES
Only the holders of trust common securities may remove or replace the
trustees of a Trust. The resignation or removal of any trustee and the
appointment of a successor trustee shall be effective only on the acceptance of
appointment by the successor trustee in accordance with the provisions of the
amended declaration for the Trust.
CONVERSION OR EXCHANGE RIGHTS
The applicable prospectus supplement will set forth the terms on which the
trust preferred securities are convertible into or exchangeable
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for common stock or other securities of Boise Cascade or any other person. Such
terms will include provisions as to whether conversion or exchange is mandatory,
at the option of the holder or at the option of Boise Cascade, and may include
provisions pursuant to which the number of shares of common stock or other
securities of Boise Cascade or any other person to be received by the holders of
trust preferred securities would be subject to adjustment.
MERGERS, CONSOLIDATIONS, CONVERSIONS OR AMALGAMATIONS OF THE TRUSTS
The Trusts may not consolidate, amalgamate, merge with or into, or be
converted into or replaced by or convey, transfer or lease their properties and
assets substantially as an entirety to any other corporation or other body,
except as described below. A Trust may, with the consent of a majority of its
regular trustees and without the consent of the holders of its trust securities
or the other trustees, engage in any of the merger events referred to above,
provided that:
- the successor entity either
(1) assumes all of the obligations of the Trust relating to its trust
securities or
(2) substitutes other securities for the trust securities that are
substantially similar to such trust securities, so long as the
successor securities rank the same as such trust securities for
distributions and payments upon liquidation, redemption and otherwise;
- Boise Cascade acknowledges a trustee of such successor entity who has the
same powers and duties as the property trustee of the Trust, as the holder
of the particular series of junior subordinated debt securities;
- the trust preferred securities are listed, or any successor securities
will be listed, upon notice of issuance, on the same national securities
exchange or other organization that the trust preferred securities are
then listed;
- the merger event does not cause the trust preferred securities or
successor securities to be downgraded by any national rating agency;
- the merger event does not adversely affect the rights, preferences and
privileges of the holders of the trust securities or successor securities
in any material way;
- the successor entity has a purpose identical to that of the Trust;
- prior to the merger event, Boise Cascade has received an opinion of
counsel from a nationally recognized law firm stating that
(1) such merger event does not adversely affect the rights of the holders
of the Trust's preferred securities or any successor securities in any
material way (other than with respect to any dilution of the holders'
interest in the new entity) and
(2) following the merger event, neither the Trust nor the successor entity
will be required to register as an investment company under the
Investment Company Act of 1940; and
- Boise Cascade or any permitted successor owns all of the common stock of
such successor entity and guarantees the obligations of the successor
entity under the successor securities in the same manner as in the trust
preferred securities guarantee and the guarantee of the common securities
for the Trust.
In addition, unless all of the holders of the trust preferred securities and
trust common securities approve otherwise, the Trust may not consent to or
engage in a merger event if that event would cause the Trust or the successor
entity to be classified other than as a grantor trust for United States federal
income tax purposes.
VOTING RIGHTS; AMENDMENT OF DECLARATION
The holders of trust preferred securities have no voting rights except as
discussed above
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under "--Mergers, Consolidations, Conversion or Amalgamations of the Trust" and
below under "Description of the Trust Preferred Securities Guarantee--Amendments
and Assignment," and as otherwise required by law or the amended declaration for
the Trust.
The amended declaration may be amended if approved by a majority of the
regular trustees of the Trust. However, if any proposed amendment provides for,
or such regular trustees otherwise propose,
(1) any action that would adversely affect the powers, preferences or
special rights of the trust securities, whether by way of amendment to
such amended declaration or otherwise or
(2) the dissolution, winding-up or termination of the Trust other than
pursuant to the terms of its amended declaration,
then the holders of the trust securities as a single class will be entitled to
vote on such amendment or proposal. In that case, the amendment or proposal will
only be effective if approved by at least 66 2/3% in liquidation amount of the
trust securities affected by such amendment or proposal.
If any amendment or proposal referred to in clause (1) above would adversely
affect only a particular class of the trust securities of the Trust, then only
the affected class will be entitled to vote on such amendment or proposal. Such
amendment or proposal will only be effective with the approval of at least
66 2/3% in liquidation amount of such affected class.
No amendment may be made to an amended declaration if such amendment would:
- cause the Trust to be characterized as other than a grantor trust for
United States federal income tax purposes;
- impose any additional obligation on Boise Cascade without the consent of
Boise Cascade;
- reduce or otherwise adversely affect the powers of the property trustee;
or
- cause the Trust to be deemed to be an "investment company" which is
required to be registered under the Investment Company Act.
The holders of a majority in aggregate liquidation amount of the trust
preferred securities have the right to:
- direct the time, method and place of conducting any proceeding for any
remedy available to the property trustee of the Trust; or
- direct the exercise of any trust or power conferred upon the property
trustee under the Trust's amended declaration, including the right to
direct the property trustee, as the holder of a series of junior
subordinated debt securities, to
(1) exercise the remedies available under the Junior Subordinated
Indenture with respect to those junior subordinated debt securities,
(2) waive any event of default under the Junior Subordinated Indenture
that is waivable or
(3) cancel an acceleration of the principal of the junior subordinated
debt securities.
However, if the Junior Subordinated Indenture requires the consent of the
holders of more than a majority in aggregate principal amount of the junior
subordinated debt securities, then the property trustee must get approval of the
holders of such "super-majority" in liquidation amount of the trust preferred
securities.
In addition, before taking any of the actions described above, the property
trustee must obtain an opinion of counsel stating that, as a result of such
action, the Trust will continue to be classified as a grantor trust for United
States federal income tax purposes.
The property trustee of the Trust will notify all trust preferred securities
holders of the Trust of any notice received from the indenture trustee with
respect to the junior subordinated debt securities held by the Trust.
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As described in the amended declaration, the property trustee may hold a
meeting to have holders of trust preferred securities vote on a change or have
them approve a change by written consent.
Any trust preferred securities that are owned by Boise Cascade or any of its
affiliates will be treated as if they were not outstanding for purposes of any
vote or consent of trust preferred securities. This means:
(1) Boise Cascade and any of its affiliates will not be able to vote on or
consent to matters requiring the vote or consent of holders of trust
preferred securities and
(2) any trust preferred securities owned by Boise Cascade or any of its
affiliates will not be counted in determining whether the required
percentage of votes or consents has been obtained.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
For matters relating to compliance with the Trust Indenture Act, the
property trustee of the Trust will have all of the duties and responsibilities
of an indenture trustee under the Trust Indenture Act. The property trustee,
other than during the occurrence and continuance of an event of default under
the Trust, undertakes to perform only such duties as are specifically set forth
in the amended declaration and, upon an event of default, must use the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the property
trustee is under no obligation to exercise any of the powers given it by the
applicable amended declaration at the request of any holder of trust preferred
securities unless it is offered reasonable security or indemnity against the
costs, expenses and liabilities that it might incur. However, the holders of the
trust preferred securities will not be required to offer such an indemnity where
the holders, by exercising their voting rights, direct the property trustee to
take any action following an event of default.
MISCELLANEOUS
The regular trustees of a Trust are authorized and directed to conduct the
affairs of the Trust and to operate the Trust in such a way that
- it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
- it will be classified as a grantor trust for United States federal income
tax purposes; and
- the junior subordinated debt securities held by it will be treated as
indebtedness of Boise Cascade for United States federal income tax
purposes.
Boise Cascade and the regular trustees of the Trust are authorized to take
any action (so long as it is consistent with applicable law or the certificate
of trust or amended declaration) that Boise Cascade and the regular trustees of
the Trust determine to be necessary or desirable for such purposes.
Holders of trust preferred securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets.
GOVERNING LAW
The amended declaration and the related trust preferred securities will be
governed by and construed in accordance with the laws of the State of Delaware
and the Trust Indenture Act.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEE
GENERAL
Boise Cascade will execute a trust preferred securities guarantee, which
benefits the holders of trust preferred securities, at the time that a Trust
issues those trust preferred securities. The
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trust preferred securities guarantee will be qualified as an indenture under the
Trust Indenture Act. The U.S. Bank Trust National Association will act as the
guarantee trustee under the trust preferred securities guarantee for the
purposes of compliance with the Trust Indenture Act. The guarantee trustee will
hold the trust preferred securities guarantee for the benefit of the holders of
trust preferred securities.
GUARANTEE PAYMENT
This section summarizes the material and general terms of the guarantees
that Boise Cascade will provide in respect of the preferred securities that the
Trusts may offer. The summary in this section does not describe every aspect of
the guarantee and is subject to and qualified in its entirety by reference to
any description in the related prospectus supplement and to all the provisions
of the guarantee agreements. The form of the guarantee agreement is filed as an
exhibit to the registration statement.
Boise Cascade will irrevocably agree, as described in the trust preferred
securities guarantee, to pay in full, to the holders of the trust preferred
securities issued by a Trust, the following trust preferred securities guarantee
payments when due to the extent not paid by the Trust, regardless of any
defense, right of set-off or counterclaim which the Trust may have or assert:
- any accrued and unpaid distributions required to be paid on the trust
preferred securities, to the extent that the Trust has funds available to
make the payment;
- the redemption price, to the extent that the Trust has funds available to
make the payment; and
- upon a voluntary or involuntary dissolution and liquidation of the Trust
(other than in connection with a distribution of junior subordinated debt
securities to holders of such trust preferred securities or the redemption
of all such trust preferred securities), the lesser of
(1) the aggregate of the liquidation amount specified in the prospectus
supplement for each trust preferred security plus all accrued and
unpaid distributions on the trust preferred securities to the date of
payment, to the extent the Trust has funds available to make the
payment and
(2) the amount of assets of the Trust remaining available for distribution
to holders of its trust preferred securities upon a dissolution and
liquidation of the trust ("Liquidation Payment").
Boise Cascade's obligation to make a trust preferred securities guarantee
payment may be satisfied by directly paying the required amounts to the holders
of the trust preferred securities or by causing the Trust to pay the amounts to
the holders.
The combined operation of Boise Cascade's obligations under the Junior
Subordinated Indenture and the trust preferred securities guarantee and amended
declaration has the effect of providing a full, irrevocable and unconditional
guarantee of the trust's obligations under its trust preferred securities.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEE
The trust preferred securities guarantee will constitute an unsecured
obligation of Boise Cascade and will rank:
- subordinate and junior in right of payment to all of Boise Cascade's other
liabilities, except those obligations made equal or junior to its
obligations under the trust preferred securities guarantee;
- equal with the senior most preferred or preference stock now or hereafter
issued by Boise Cascade, and with any guarantee now or hereafter issued by
it in respect of any preferred or preference stock of any of its
affiliates; and
- senior to the common stock.
The amended declaration will require that the holder of trust preferred
securities accept the subordination provisions and other terms of
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the trust preferred securities guarantee. The trust preferred securities
guarantee will constitute a guarantee of payment and not of collection (in other
words, the holder of the guaranteed security may sue Boise Cascade, or seek
other remedies, to enforce its rights under the trust preferred securities
guarantee without first suing any other person or entity). A trust preferred
securities guarantee will not be discharged except by payment of the guarantee
Payments in full to the extent not previously paid or upon distribution of the
corresponding series of junior subordinated debt securities to the holders of
trust preferred securities pursuant to the amended declaration.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of trust preferred securities in any material respect (in which case
no consent of such holders will be required), a trust preferred securities
guarantee may only be amended with the prior approval of the holders of at least
66 2/3% in aggregate liquidation amount of such trust preferred securities. We
have described the way to obtain any approval under "Description of the Trust
Preferred Securities--Voting Rights; Amendment of Declaration." All guarantees
and agreements contained in the trust preferred securities guarantee will be
binding on Boise Cascade's successors, assigns, receivers, trustees and
representatives and are for the benefit of the holders of the applicable trust
preferred securities.
TRUST PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT
An event of default under the trust preferred securities guarantee occurs if
Boise Cascade fails to make any of its required payments or perform its
obligations under the trust preferred securities guarantee.
The holders of at least a majority in aggregate liquidation amount of the
trust preferred securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the guarantee
trustee or to direct the exercise of any trust or power given to the guarantee
trustee under the trust preferred securities guarantee.
INFORMATION CONCERNING THE TRUST PREFERRED GUARANTEE TRUSTEE
The guarantee trustee under the trust preferred securities guarantee, other
than during the occurrence and continuance of an event of default under the
trust preferred securities guarantee, will only perform the duties that are
specifically described in the trust preferred securities guarantee. After such a
default, the trust preferred guarantee trustee will exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the guarantee trustee is under no
obligation to exercise any of its powers as described in the trust preferred
securities guarantee at the request of any holder of covered trust preferred
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that it might incur.
TERMINATION OF THE TRUST PREFERRED SECURITIES GUARANTEE
The trust preferred securities guarantee will terminate once the trust
preferred securities are paid in full or upon distribution of the corresponding
series of junior subordinated debt securities to the holders of the trust
preferred securities. The trust preferred securities guarantee will continue to
be effective or will be reinstated if at any time any holder of trust preferred
securities must restore payment of any sums paid under such trust preferred
securities or such trust preferred securities guarantee.
GOVERNING LAW
The trust preferred securities guarantee will be governed by and construed
in accordance with the laws of the State of New York and the Trust Indenture
Act.
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RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE TRUST PREFERRED SECURITIES GUARANTEE
AND THE SUBORDINATED DEBT SECURITIES HELD BY THE TRUST
Payments of distributions and redemption and liquidation payments due on the
trust preferred securities, to the extent the trust has funds available for the
payments, will be guaranteed by Boise Cascade to the extent described above
under "Description of the Trust Preferred Securities Guarantee." The combined
operation of Boise Cascade's obligations under the trust preferred securities
guarantee, amended declaration and the Junior Subordinated Indenture has the
effect of providing a full, irrevocable and unconditional guarantee of each of
the Trusts' obligations under its trust preferred securities.
As long as Boise Cascade makes payments of interest and other payments when
due on the junior subordinated debt securities held by a Trust, such payments
will be sufficient to cover the payment of distributions and redemption and
liquidation payments due on the trust preferred securities issued by the Trust.
This is because:
- the aggregate principal amount of the junior subordinated debt securities
will be equal to the sum of the aggregate liquidation amount of the trust
securities;
- the interest rate and interest and other payment dates on the junior
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the trust preferred securities;
- Boise Cascade will pay for any and all costs, expenses and liabilities of
each Trust except the trust's obligations under its trust preferred
securities; and
- each amended declaration provides that a Trust will not engage in any
activity that is not consistent with the limited purposes of the Trust.
If and to the extent that Boise Cascade does not make payments on such
junior subordinated debt securities, the Trust will not have funds available to
make payments of distributions or other amounts due on its trust preferred
securities. In those circumstances, you will not be able to rely upon the trust
preferred securities guarantee for payment of these amounts. Instead, you may
directly sue Boise Cascade or seek other remedies to collect your pro rata share
of payments owed. If you sue Boise Cascade to collect payment, then Boise
Cascade will assume your rights as a holder of trust preferred securities under
the amended declaration to the extent Boise Cascade makes a payment to you in
any such legal action.
A holder of any trust preferred security may sue Boise Cascade, or seek
other remedies, to enforce its rights under the trust preferred securities
guarantee without first suing the guarantee trustee, the Trust or any other
person or entity.
PLAN OF DISTRIBUTION
Boise Cascade may sell common stock, preferred stock, any series of debt
securities, warrants, purchase contracts, units or guarantees and the Trusts may
sell trust preferred securities in one or more of the following ways from time
to time:
- to underwriters for resale to the public or to institutional investors;
- directly to institutional investors; or
- through agents to the public or to institutional investors.
The offered securities may be distributed periodically in one or more
transactions at:
- a fixed price or prices, which may be changed;
- market prices prevailing at the time of sale;
- prices related to the prevailing market prices; or
- negotiated prices.
37
In connection with the sale of offered securities, underwriters or agents may
receive compensation from Boise Cascade in the form of underwriting discounts or
commissions. They may also receive commissions from purchasers of offered
securities for whom they may act as agent. Underwriters or agents may sell
offered securities to or through dealers. Those dealers may receive compensation
in the form of discounts, concessions, or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agent.
The prospectus supplement will set forth the terms of the offering of the
securities, including the name or names of any underwriters or agents, the
purchase price of such securities and the proceeds to Boise Cascade or the
Trusts, as the case may be, from such sale, any underwriting discounts or agency
fees and other items constituting underwriters' or agents' compensation, any
initial public offering price, any discounts or concessions allowed or reallowed
or paid to dealers and any securities exchanges on which the securities may be
listed.
If underwriters are used in the sale, the offered 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.
Unless otherwise set forth in a prospectus supplement, the obligations of
the underwriters to purchase any series of securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all of
such series of securities, if any are purchased.
Underwriters, dealers, and agents participating in the distribution of the
offered securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
offered securities may be deemed to be underwriting discounts and commissions,
under the Securities Act of 1933. Underwriters and agents may be entitled under
agreements entered into with Boise Cascade and/or the Trusts to indemnification
by Boise Cascade and/or the Trusts against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which the underwriters or agents may be required to make in respect
thereof.
Underwriters and agents and/or their affiliates may engage in transactions
with or perform services for Boise Cascade and its affiliates in the ordinary
course of business.
If indicated in the Prospectus Supplement, Boise Cascade will authorize
dealers or other persons acting as its agents to solicit offers by certain
institutions to purchase offered securities from Boise Cascade pursuant to
delayed purchase contracts providing for payment and delivery on the date(s)
stated in the prospectus supplement. Each contract will be for an amount not
less than (and the aggregate amount of offered securities sold pursuant to
contracts shall be not less or more than) the respective amounts stated in the
prospectus supplement. Institutions with whom Boise Cascade may enter into
delayed purchase contracts include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions. Purchasers will in all cases be subject to
Boise Cascade's approval. The obligations of any purchaser under any delayed
contract will not be subject to any conditions except:
1. The purchase by an institution of the offered securities covered by its
delayed contract shall not at the time of delivery be prohibited under
the laws of any jurisdiction in the United States to which such
institution is subject, and
2. If the offered securities are being sold to underwriters, Boise Cascade
shall have sold to the underwriters the total principal amount of the
offered securities less the principal amount covered by delayed purchase
contracts.
The underwriters will not have any responsibility regarding the validity or
performance of the delayed purchase contracts.
Each series of offered securities will be a new issue of securities and will
have no established trading market, other than the common stock which is listed
on the New York
38
Stock Exchange and the Chicago Stock Exchange. Any common stock sold pursuant to
a prospectus supplement will be listed on the New York Stock Exchange and the
Chicago Stock Exchange subject to official notice of issuance. Other securities
may or may not be listed on a national securities exchange. Any underwriters to
whom securities are sold by Boise Cascade or by a Trust for public offering and
sale may make a market in the securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice.
VALIDITY OF OFFERED SECURITIES
The validity of the Offered Securities will be passed upon for us by John W.
Holleran, who is our Senior Vice President and General Counsel, and for the
underwriters or agents, if any, by Sullivan & Cromwell, New York, New York.
Certain matters of Delaware law relating to the trust preferred securities will
be passed upon on behalf of the Trusts by Richards, Layton & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel to the Trusts. As of December 31,
1998, Mr. Holleran was the beneficial owner of 1,146 shares of our common stock
and 883 shares of our Convertible preferred stock, Series D, in the Employee
Stock Option Plan. Mr. Holleran holds options to purchase shares of our common
stock under a Company stock option plan. Sullivan & Cromwell and Richards,
Layton & Finger, P.A. from time to time render legal services to Boise Cascade.
EXPERTS
The audited financial statements incorporated by reference in this
prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports which accompany those statements, and
are incorporated by reference in reliance upon the authority of that firm as
experts in accounting and auditing in giving such reports.
39
WHERE YOU CAN FIND MORE INFORMATION
Boise Cascade Corporation files reports, proxy statements and other
information with the Securities and Exchange Commission. Our filings are
available over the Internet at the SEC's web site at http://www.sec.gov. You may
also read and copy any document we file with the SEC at the SEC's public
reference rooms at:
- 450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549;
- Seven World Trade Center
13th Floor
New York, New York 10048; and
- Citicorp Center
500 West Madison Street
Suite 1400
Chicago, Illinois 60601.
Please call the SEC at 1-800-SEC-0330 for more information on the public
reference rooms and their copy charges. You may also inspect the reports and
other information we file with the SEC at:
- New York Stock Exchange
20 Broad Street
New York, New York 10005; and
- Chicago Stock Exchange
One Financial Place
440 South LaSalle Street
Chicago, Illinois 60605-1070.
We have filed a registration statement on Form S-3 with the SEC that covers
the securities described in this prospectus. For further information on Boise
Cascade, the Trusts and the securities, you should refer to our registration
statement and its exhibits. In this prospectus, we have summarized material
provisions of contracts and other documents. Since this prospectus may not
contain all the information that you may find important, you should review the
full text of these documents. We have included copies of these documents as
exhibits to our registration statement. The registration statement can be
obtained from the SEC in the ways described above, or from Boise Cascade.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" information we file with
them. This means that we can disclose important information to you by referring
you to those documents. Any information we reference in this manner is
considered part of this prospectus. Any information we file with SEC after the
date of this prospectus will automatically update and, to the extent
inconsistent, supersede the information contained in this prospectus.
We incorporate by reference the following documents which we have filed with
the SEC:
(1) Annual Report on Form 10-K for the year ended December 31, 1998; and
(2) The portions of Boise Cascade's Proxy Statement on Schedule 14A for the
annual meeting of shareholders to be held on April 15, 1999, that have
been incorporated by reference into the 10-K for the year ended December
31, 1998.
We also incorporate by reference any future filings we will make with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this prospectus but before the end of the offering of the
securities made by this prospectus.
You may request a copy of these filings, at no cost, by contacting us at:
Investor Relations Department
Boise Cascade Corporation
P.O. Box 50
Boise, ID 83728-00001
208/384-6390
e-mail: BCWEB@BC.COM
40
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
We estimate the expenses of the offering described in this Registration
Statement to be as follows:
Commission filing fee (actual fee)................................ $ 73,670
Accounting fees and expenses...................................... 10,000
Legal fees and expenses........................................... 100,000
Rating agencies' fees............................................. 200,000
Transfer Agent's, Trustee's and Depositary's fees and expenses.... 25,000
Printing and Engraving............................................ 100,000
Miscellaneous..................................................... 6,330
---------
Total............................................................. $ 515,000
---------
---------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware authorizes Boise
Cascade to indemnify its directors and officers under specified circumstances.
Our Restated Certificate of Incorporation and bylaws provide that we shall
indemnify, to the extent permitted by Delaware law, our directors, officers, and
employees against liabilities (including expenses, judgments, and settlements)
incurred by them in connection with any actual or threatened action, suit, or
proceeding to which they are or may become parties and which arise out of their
status as directors, officers, or employees. Boise Cascade has also entered into
agreements with each director to indemnify him or her to the fullest extent
permitted by Delaware Law.
Our directors and officers are insured, under insurance policies maintained
by Boise Cascade (subject to the limitations of the policies), against certain
expenses incurred in the defense of actions, suits, or proceedings and certain
liabilities which might be imposed as a result of such actions, suits, or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
Under the amended declarations, Boise Cascade will agree to indemnify and
hold harmless, to the fullest extent permitted by applicable law, each Trustee,
any affiliate of any Trustee, any officer, director, shareholder, employee,
representative or agent of any Trustee, and any employee or agent of the Trusts
or their affiliates (each an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim incurred by such Indemnified
Person by reason of the creation, operation, dissolution or termination of the
Trust or in connection with the administration of the Trusts or any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by the
amended declarations, except that no Indemnified Person will be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions.
ITEM 16. LIST OF EXHIBITS
Required exhibits are listed in the Index to Exhibits and are incorporated
by reference.
S-1
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the 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 the 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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do 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 Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall 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 being registered which remain unsold at the termination
of the offering.
4. That, for the purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
5. That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
6. To file applications for the purpose of determining the eligibility of
the trustees under the Subordinated Indenture and the Junior Subordinated
Indenture to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
S-2
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions set forth in Item 15, or otherwise, the
registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrants of expenses
incurred or paid by a director, officer or controlling person of the registrants
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 registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
S-3
POWER OF ATTORNEY
Each person whose signature appears below appoints George J. Harad and John
W. Holleran, and each of them severally, acting alone and without the other,
their true and lawful attorney-in-fact with authority to execute in the name of
each such person and to file with the Securities and Exchange Commission,
together with any exhibits and other documents, any and all amendments
(including post-effective amendments) to this Registration Statement necessary
or advisable to enable Boise Cascade to comply with the Securities Act of 1933,
as amended, and any rules, regulations, and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make such other
changes in the Registration Statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Boise Cascade
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 Boise, Idaho, on March 24, 1999.
BOISE CASCADE CORPORATION
By /s/ GEORGE J. HARAD
------------------------------------
George J. Harad,
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
S-4
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on March 24, 1999.
SIGNATURES TITLE
- --------------------------------------------- -------------------------
Principal Executive Officer:
/s/ GEORGE J. HARAD*
------------------------------------------- Chairman of the Board and
George J. Harad Chief Executive Officer
Principal Financial Officer:
/s/ THEODORE CRUMLEY
------------------------------------------- Senior Vice President and
Theodore Crumley Chief Financial Officer
Principal Accounting Officer:
/s/ TOM E. CARLILE
------------------------------------------- Vice President and
Tom E. Carlile Controller
A Majority of the Directors
/s/ GEORGE J. HARAD
------------------------------------------- Director
George J. Harad
/s/ ANNE L. ARMSTRONG
------------------------------------------- Director
Anne L. Armstrong
/s/ PHILIP J. CARROLL
------------------------------------------- Director
Philip J. Carroll
------------------------------------------- Director
Rakesh Gangwal
/s/ ROBERT K. JAEDICKE
------------------------------------------- Director
Robert K. Jaedicke
S-5
SIGNATURES TITLE
- --------------------------------------------- -------------------------
------------------------------------------- Director
Francesca Ruiz de Luzuriaga
/s/ DONALD S. MACDONALD
------------------------------------------- Director
Donald S. Macdonald
/S/ GARY G. MICHAEL
------------------------------------------- Director
Gary G. Michael
/s/ PAUL J. PHOENIX
------------------------------------------- Director
Paul J. Phoenix
/s/ A. WILLIAM REYNOLDS
------------------------------------------- Director
A. William Reynolds
/s/ JANE E. SHAW
------------------------------------------- Director
Jane E. Shaw
/s/ FRANK A. SHRONTZ
------------------------------------------- Director
Frank A. Shrontz
/s/ EDSON W. SPENCER
------------------------------------------- Director
Edson W. Spencer
/s/ WARD W. WOODS, JR.
------------------------------------------- Director
Ward W. Woods, Jr.
Dated: March 24, 1999
S-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of Boise
Cascade Trust I, Boise Cascade Trust II and Boise Cascade Trust III certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and that it has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Boise, Idaho, on March 24, 1999.
BOISE CASCADE TRUST I
By BOISE CASCADE CORPORATION
By /s/ JOHN W. HOLLERAN
------------------------------------
John W. Holleran
SENIOR VICE PRESIDENT
AND GENERAL COUNSEL
BOISE CASCADE TRUST II
By BOISE CASCADE CORPORATION
By /s/ JOHN W. HOLLERAN
------------------------------------
John W. Holleran
SENIOR VICE PRESIDENT
AND GENERAL COUNSEL
BOISE CASCADE TRUST III
By BOISE CASCADE CORPORATION
By /s/ JOHN W. HOLLERAN
------------------------------------
John W. Holleran
SENIOR VICE PRESIDENT
AND GENERAL COUNSEL
S-7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated January
29, 1999, incorporated by reference into Boise Cascade Corporation's Form 10-K
for the year ended December 31, 1998, and to all references to our firm included
in this Registration Statement on Form S-3.
Boise, Idaho
March 24, 1999
ARTHUR ANDERSEN LLP
S-8
BOISE CASCADE CORPORATION
EXHIBIT INDEX
Filed with Form S-3
EXHIBIT PAGE
- ----------- -----------
1.1 The form of Underwriting Agreement with respect to Boise Cascade's debt securities will be
filed as an exhibit to a Current Report of Boise Cascade on Form 8-K and incorporated herein
by reference.
1.2 The form of Underwriting Agreement with respect to Boise Cascade's Common Stock and Preferred
Stock will be filed as an exhibit to a Current Report of Boise Cascade on Form 8-K and
incorporated herein by reference.
1.3 The form of Underwriting Agreement with respect to the Preferred Securities of the Trusts will
be filed as an exhibit to a Current Report of Boise Cascade on Form 8-K and incorporated
herein by reference.
1.4 The form of Underwriting Agreement with respect to the units will be filed as an exhibit to a
Current Report of Boise Cascade on Form 8-K and incorporated herein by reference.
4.1 (1) Restated Certificate of Incorporation, as restated to date.
4.2 (2) Bylaws, as amended, December 11, 1998
4.3 (3) Indenture dated as of October 1, 1985, between Boise Cascade and U.S. Bank Trust National
Association (as successor to Morgan Guaranty Trust Company of New York)
4.4 (4) First Supplemental Indenture dated December 20, 1989
4.5 (5) Second Supplemental Indenture dated August 1, 1990
4.6 Form of Subordinated Indenture to be used in connection with the issuance of Boise Cascade's
subordinated debt securities.
4.7 Form of Junior Subordinated Indenture to be used in connection with the issuance of the junior
subordinated debt securities to the Boise Cascade Trusts.
4.8 Form of senior debt securities (included in Exhibit 4.3).
4.9 Form of subordinated debt securities (included in Exhibit 4.6).
4.10 Form of junior subordinated debt securities (included in Exhibit 4.7).
4.11 The form of any certificate of designation with respect to any preferred stock issued
hereunder will be filed as an exhibit to a Current Report of Boise Cascade on Form 8-K and
incorporated herein by reference.
4.12 The form of Purchase Contract Agreement, between Boise Cascade and the Purchase Contract Agent
(including as Exhibit A the form of the Security Certificate), will be filed as an exhibit to
a Current Report of Boise Cascade on Form 8-K and incorporated herein by reference.
4.13 Certificate of Trust of Boise Cascade Trust I.
4.14 Certificate of Trust of Boise Cascade Trust II.
S-9
EXHIBIT PAGE
- ----------- -----------
4.15 Certificate of Trust of Boise Cascade Trust III.
4.16 Declaration of Trust of Boise Cascade Trust I.
4.17 Declaration of Trust of Boise Cascade Trust II.
4.18 Declaration of Trust of Boise Cascade Trust III.
4.19 Form of Amended and Restated Declaration of Trust for the Boise Cascade Trusts.
4.20 Form of Trust Preferred Security (included in Exhibit 4.19).
4.21 Form of Guarantee Agreement with respect to the Preferred Securities of the Boise Cascade
Trusts.
4.22 The form of Deposit Agreement will be filed as an exhibit to a Current Report of Boise Cascade
on Form 8-K and incorporated herein by reference.
4.23 Form of Depositary Receipt (included in Exhibit 4.22).
4.24 The form of Warrant Agreement will be filed as an exhibit to a Current Report of Boise Cascade
on Form 8-K and incorporated herein by reference.
4.25 Form of Warrant Certificate (included in Exhibit 4.24).
5.1 Opinion of John W. Holleran.
5.2 Opinion of Richards, Layton & Finger, P.A.
12.1 (6) Statement re computation of ratio of earnings to fixed charges.
12.2 Statement re computation of ratio of earnings to combined fixed charges and preferred dividend
requirements.
23.1 Consent of Arthur Andersen LLP (see page S-8).
23.2 Consent of John W. Holleran (included in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2).
24. Power of Attorney (included on signature pages of this registration statement).
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of
U.S. Bank Trust National Association (as successor to Morgan Guaranty Trust Company of New
York), as Trustee under the Senior Indenture.
25.2 The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of
the Trustee under the Subordinated Indenture will be filed as an exhibit to a Current Report
of Boise Cascade on Form 8-K and incorporated herein by reference.
25.3 The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of
the Trustee under the Junior Subordinated Indenture will be filed as an exhibit to a Current
Report of Boise Cascade on Form 8-K and incorporated herein by reference.
25.4 The Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee
of the Preferred Securities Guarantee of Boise Cascade for the benefit of the holders of the
Preferred Securities of the Boise Cascade Trust I, II and III will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by reference.
S-10
EXHIBIT PAGE
- ----------- -----------
25.5 The Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee
under the Amended and Restated Declaration of Trust of Boise Cascade Trust I, II and III will
be filed as an exhibit to a Current Report on Form 8-K and incorporated herein by reference.
- ------------------------
(1) The Restated Certificate of Incorporation was filed under Exhibit 3 in Boise
Cascade's Quarterly Report on Form 10-Q for the quarter ended March 31,
1996, and is incorporated by this reference.
(2) The Bylaws, as amended, December 11, 1998 were filed under Exhibit 3.2 in
Boise Cascade's Form 10-K for the year ended December 31, 1998 (File No.
1-5057), and are incorporated by this reference.
(3) The Indenture was filed under Exhibit 4 in Boise Cascade's Registration
Statement on Form S-3, Registration No. 33-5673, filed May 13, 1986, and is
incorporated by this reference.
(4) The First Supplemental Indenture was filed under Exhibit 4.2 in Boise
Cascade's Pre-Effective Amendment No. 1 to Form S-3, Registration No.
33-32584, filed December 20, 1989, and is incorporated by this reference.
(5) The Second Supplemental Indenture was filed under Exhibit 4.1 in Boise
Cascade's Form 8-K filed August 10, 1990 (File No. 1-5057), and is
incorporated by this reference.
(6) The "Statement re computation of ratio of earnings to fixed charges" was
filed under Exhibit 12 in Boise Cascade's Form 10-K for the year ended
December 31, 1998 (File No. 1-5057), and is incorporated by this reference.
S-11
EXHIBIT 4.6
- --------------------------------------------------------------------------------
BOISE CASCADE CORPORATION
TO
-----------------------------
---------------
SUBORDINATED DEBT SECURITIES
INDENTURE
DATED AS OF
--------------
---------------
- --------------------------------------------------------------------------------
BOISE CASCADE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated____________
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
Section 310(a)(1)............................................ 609
(a)(2)............................................ 609
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(b)............................................... 608
610
Section 311(a)............................................... 613(a)
(b)............................................... 613(b)
(b)(2)............................................ 703(a)(2)
703(b)
Section 312(a)............................................... 701
702(a)
(b)............................................... 702(b)
(c)............................................... 702(c)
Section 313(a)............................................... 703(a)
(b)............................................... 703(b)
(c)............................................... 703(a), 703(b)
(d)............................................... 704
- ----------
Note: This reconciliation and the _________ shall not, for any purpose, be
deemed to be a part of the Indenture.
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
Section 314(a)................................................ 704
(b)................................................ Not Applicable
(c)(1)............................................. 102
(c)(2)............................................. 102
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 102
Section 315(a)................................................ 601(a)
(b)................................................ 602
703(a)(6)
(c)................................................ 601(b)
(d)................................................ 601(c)
(d)(1)............................................. 601(a)(1)
(d)(2)............................................. 601(c)(2)
(d)(3)............................................. 601(c)(3)
(e)................................................ 514
Section 316(a)................................................ 101
(a)(1)(A).......................................... 502
512
(a)(1)(B).......................................... 513
(a)(2)............................................. Not Applicable
(b)................................................ 508
Section 317(a)(1)............................................. 503
(a)(2)............................................. 504
(b)................................................ 1003
Section 318(a)................................................ 107
TABLE OF CONTENTS
PAGE
----
INDENTURE 1
RECITALS OF THE COMPANY 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. DEFINITIONS 1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS 10
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE 11
SECTION 104. ACTS OF HOLDERS 12
SECTION 105. NOTICES. ETC., TO TRUSTEE AND COMPANY 13
SECTION 106. NOTICE TO HOLDERS; WAIVER 13
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT 14
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS 14
SECTION 109. SUCCESSORS AND ASSIGNS 14
SECTION 110. SEPARABILITY CLAUSE 14
SECTION 111. BENEFITS OF INDENTURE 14
SECTION 112. GOVERNING LAW 14
SECTION 113. LEGAL HOLIDAYS 14
ARTICLE TWO SECURITY FORMS 15
SECTION 201. FORMS GENERALLY 15
SECTION 202. FORM OF FACE OF SECURITY 15
SECTION 203. FORM OF REVERSE OF SECURITY 18
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION 22
ARTICLE THREE THE SECURITIES 22
SECTION 302. DENOMINATIONS 25
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING 25
SECTION 304. TEMPORARY SECURITIES 26
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE 27
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES 29
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED 30
SECTION 308. PERSONS DEEMED OWNERS 31
SECTION 309. CANCELLATION 31
SECTION 310. COMPUTATION OF INTEREST 32
ARTICLE FOUR SATISFACTION AND DISCHARGE 32
SECTION 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES 32
SECTION 402. DEFEASANCE OF SECURITIES OF ANY SERIES 33
SECTION 403. APPLICATION OF TRUST FUNDS; INDEMNIFICATION 34
ARTICLE FIVE REMEDIES 35
SECTION 501. EVENTS OF DEFAULT 35
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT 37
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE 39
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM 39
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES 40
SECTION 506. APPLICATION OF MONEY COLLECTED 41
SECTION 507. LIMITATION ON SUITS 41
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST 42
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES 42
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE 42
SECTION 511. DELAY OR OMISSION NOT WAIVER 42
SECTION 512. ONTROL BY HOLDERS 43
SECTION513. WAIVER OF PAST DEFAULTS 43
SECTION 514. UNDERTAKING FOR COSTS 44
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS 44
ARTICLE SIX THE TRUSTEE 44
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES 44
SECTION 602. NOTICE OF DEFAULTS 46
SECTION 603. CERTAIN RIGHTS OF TRUSTEE 46
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES 47
SECTION 605. MAY HOLD SECURITIES 47
SECTION 606. MONEY HELD IN TRUST 48
SECTION 607. COMPENSATION AND REIMBURSEMENT 48
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY 54
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR 54
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR 56
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS 56
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY 57
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT 61
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 63
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS 63
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS 63
SECTION 703. REPORTS BY TRUSTEE 65
SECTION 704. REPORTS BY COMPANY 66
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER 67
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. 67
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED 68
ARTICLE NINE SUPPLEMENTAL INDENTURES 68
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS 68
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS 69
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES 70
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES 70
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT 70
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES 71
ARTICLE TEN COVENANTS 71
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST 71
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY 71
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST 72
SECTION 1004. STATEMENT AS TO COMPLIANCE 73
SECTION 1005. CORPORATE EXISTENCE 73
SECTION 1006. WAIVER OF CERTAIN COVENANTS 73
ARTICLE ELEVEN REDEMPTION OF SECURITIES 74
SECTION 1101. APPLICABILITY OF ARTICLE 74
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE 74
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED 74
SECTION 1104. NOTICE OF REDEMPTION 75
SECTION 1105. DEPOSIT OF REDEMPTION PRICE 76
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE 76
SECTION 1107. SECURITIES REDEEMED IN PART 76
ARTICLE TWELVE SINKING FUNDS 77
SECTION 1201. APPLICABILITY OF ARTICLE 77
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES 77
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND 77
ARTICLE THIRTEEN SUBORDINATION OF SECURITIES 78
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. 78
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC 78
SECTION 1303. PAYMENT BLOCKAGE UPON ACCELERATION OF SENIOR INDEBTEDNESS, ETC. 79
SECTION 1304. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT. 80
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT 81
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS 81
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. 82
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION. 82
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS. 82
SECTION 1310. NOTICE TO TRUSTEE. 82
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT. 83
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS. 83
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION OF
TRUSTEE'S RIGHTS. 83
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS. 83
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INDENTURE
INDENTURE, dated as of [_______ __], [1999], between BOISE CASCADE
CORPORATION, a corporation duly organized and existing under the laws of the
state of Delaware (herein called the "Company"), having its principal office at
One Jefferson Square, Boise, Idaho 83728, and _____________________, a
________trust company (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly.
whether through the ownership of voting securities, by contract or otherwise and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company,
the Executive Committee of such board, or any other committee authorized by such
board to act hereunder.
"Board Resolution" means a copy of one or more resolutions certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
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"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan. The City of New York, New York, at which at any
particular time its corporate trust business shall be administered. As of the
date of this Indenture, the office of the Trustee at which its corporate trust
business is conducted is located at [__________________________________].
"Debt", with respect to any Person, means (i) all indebtedness of such
Person for borrowed money, whether or not the recourse of the lender is to the
whole of the assets of the borrower or only to a portion thereof, and including
all indebtedness evidenced by notes, bonds, debentures or other securities sold
for money, (ii) all indebtedness of such Person incurred or assumed in the
acquisition of any business, real property or other assets, except goods and
materials acquired in the ordinary course of the conduct of the acquirer's usual
business, (iii) all capital lease obligations of such Person, (iv) hedging
obligations of such Person, (v) guarantees by such Person of indebtedness of a
type described in the preceding four clauses (i) through (iv) of any other
person, and (vi) renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any such indebtedness (including, without
limitation, exchange offers), obligation or guarantee of such Person.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended, specified for that purpose, as contemplated by Section 301,
with respect to the Securities of such Series.
"Event of Default" has the meaning specified in Section 501.
-4-
"Global Security" means a Security bearing the legend required by
Section 205 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee and registered in the name of such
Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest" when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who may be an
employee of the Company or other counsel who shall be satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which by its terms
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof.
-5-
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities,
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made, and provided
further, that Securities for whose payment or redemption money or U.S.
Government Obligations have been deposited with the Trustee pursuant to
Section 401 or 402 of this Indenture shall be deemed Outstanding for all
purposes of this Indenture until their Stated Maturity or Redemption
Date, as the case may be, or until otherwise determined not to be
Outstanding pursuant to clauses(i) and (iii) hereof; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; 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, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor. In determining
whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original
Issue
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Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof on such date pursuant to Section
502.
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 or whether a
quorum is present at a meeting of Holders of Securities (i) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of a Security in denominated
in a foreign currency or currencies, including composite currencies, shall be
the U.S. dollar equivalent, determined on the date of original issuance of such
Security the manner provided as contemplated by Section 301, of the principal
amount (or, in the case of an Original Issue Account Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (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 shall be disregarded and deemed not to
be Outstanding except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, or upon any such determination as to the presence of
a quorum, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Period" has the meaning stated in Section 1303.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable.
-7-
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning stated in Section 1302.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
business;
-8-
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means any Debt incurred, assumed or guaranteed
by the Company, whether presently outstanding or incurred, assumed or
guaranteed in the future, including (i) the principal of, and premium, if
any, on such Debt, (ii) interest on such Debt, including interest accruing
after the filing of a petition initiating any Proceeding pursuant to any
bankruptcy law, but only to the extent allowed or permitted to the Holder of
such Debt against the bankruptcy or any other insolvency estate of the
Company in such Proceeding, (iii) any accrued original issue discount on such
Debt, (iv) other amounts due on or in connection with such Debt, and (v) all
renewals, extensions and refundings of any such Debt; PROVIDED, HOWEVER, that
the following shall not constitute Senior Indebtedness: Debt issued under the
junior indenture (i) any other Debt which expressly provides (x) that such
Debt shall not be senior in right of payment to the Securities or (y) that
such Debt shall be subordinated to any other Debt of the Company, unless such
Debt expressly provides that such Debt shall be senior in right of payment to
the Securities, (ii) any Debt of the Company in respect of the Securities,
(iii) any Debt or liability for compensation to employees, for goods or
materials purchased in the ordinary course of business or for services, (iv)
any Debt of the Company to any Subsidiary for money borrowed or advance from
such Subsidiary, and (v) any liability for federal, state, local or other
taxes owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
-9-
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged, or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case are not
callable or redeemable at the option of the issuer thereof. U.S. Government
Obligations shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; PROVIDED, HOWEVER, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this indenture, the Company shall furnish to
the Trustee an
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Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons may certify or give an opinion as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel
-11-
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representation by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) In determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver under the
Indenture, the principal amount of an Original Issue Discount Security
that may be counted in making such determination and that shall be
deemed to be Outstanding for such purposes shall be equal to the amount
of the principal thereof that could be declared to be due and payable
upon acceleration under Section 502 pursuant to the terms of such
Original Issue Discount Security at the time the taking of such action
by the Holders of such requisite principal amount is evidenced to the
Trustee.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section.
(c) 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
-12-
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(d) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES. ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register. not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to
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other Holders. Any notice mailed in the manner prescribed by this Indenture
shall be deemed to have been given whether or not received by any particular
Holder. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee. but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
If for any reason it shall be impossible to make publication of any
notice in a newspaper of general circulation in the Borough of Manhattan, The
City of New York, New York, when such publication is required to be given
pursuant to any provision of this Indenture, then such manner of publication or
notification as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
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Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
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) 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 with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
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.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
-15-
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT --FOR
PURPOSES OF SECTION [1273] OF THE UNITED STATES INTERNAL REVENUE CODE OF 1954,
AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT AND
THE ISSUE DATE IS , 19 -- OR CORRESPONDING LEGEND APPROPRIATE AT THE TIME
OF ISSUANCE.]
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BOISE CASCADE CORPORATION
...........% ............... DUE ..........................
(Hereinafter "Securities")
No............... $......................
BOISE CASCADE CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered assigns, the
principal sum of Dollars 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, semiannually on and in each year,
commencing , at the rate of % per annum, until the principal hereof
is paid or made available for payment [IF APPLICABLE, INSERT--, at the rate of
% per annum on any overdue principal and premium and (to the extent that
the payment of such interest shall be permitted by applicable law) on any
overdue 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 shall 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 shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities 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 shall 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 shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be permitted by applicable law), which shall accrue from
-17-
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 shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of % per annum (to the extent
that the payment of such interest shall be permitted by applicable law), which
shall 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 shall 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 that purpose in The City of New York, New York, or
at the option of the Holder of this Security, at the office or agency of the
Company in Boise, Idaho, so long as the Company shall maintain an office in
Boise for such purpose, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; PROVIDED, HOWEVER that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture), and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
-18-
Dated:
BOISE CASCADE CORPORATION
By
--------------------------------------
Attest:
- -------------------------------------
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of the
Company 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, [limited in
aggregate principal amount to $ , except as otherwise provided in the
Indenture].
[IF APPLICABLE, INSERT--The Securities of this series are subject to
redemption upon not less than 30-days' prior notice by mail, [IF APPLICABLE,
INSERT--(1) on in any 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 (2)] at
any time [on or after , 19 ], as a whole or from time to
time in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [on or before
, %, and if redeemed] during the 12-month period beginning
of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ---------
-19-
and thereafter at a Redemption Price equal to 100% 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 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.]
[IF APPLICABLE, INSERT--The Securities of this series are subject to
redemption upon not less than 30-days' prior notice by mail, (1) on
in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ], as a whole or from time to time in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION OF THAN THROUGH OPERATION
YEAR THE SINKING FUND OF THE SINKING FUND
---- -------------------- ----------------------
and thereafter at a Redemption Price equal to 100% 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.]
-20-
[Notwithstanding the foregoing, the Company may not, prior to ,
redeem any Securities of this series as contemplated by [Clause (2) 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.]
[The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [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 [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made--in the inverse
order in which they become due.]
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 THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,--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,--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
shall be equal to--INSERT FORMULA FOR DETERMINING THE AMOUNT. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), 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 shall 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 66 2/3% in aggregate 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
aggregate principal amount of the Securities, or in some cases of any one or
more series of Securities, at the time Outstanding, on behalf of the Holders of
all Securities, or such one
-21-
or more series of Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency, herein prescribed.
In the event of the merger or consolidation of the obligor on the
Securities into, or of the transfer of its assets substantially as an entirety
to, a successor corporation, such successor corporation shall assume payment of
the Securities and performance of every covenant of the Indenture on the part of
the predecessor corporation to be performed, and shall be substituted for the
predecessor corporation under the Indenture; and in the event of any such
transfer, such predecessor corporation shall be discharged from all obligations
and covenants under the Indenture and the Securities and may be dissolved and
liquidated, all as more fully set forth in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee 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 $ and any integral multiple 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 shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
-22-
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
---------------------------------------
, as Trustee
By
----------------------------------------
AUTHORIZED OFFICER
SECTION 205. FORM OF LEGEND FOR GLOBAL SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form or such other form as may be
determined pursuant to Section 201:
`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 of a Depositary. This Global Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.'
-23-
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of any Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall 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;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(6) the place or places where the principal of (and premium, if
any) and any interest on Securities of the series shall be payable;
-24-
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the price or prices
at which, the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(11) if Section 401(c) is inapplicable to the Securities of the
series;
(12) if Section 402 is inapplicable to the Securities of the
series;
(13) the currency or currencies, including composite currencies,
in which payment of the principal of and any premium and interest on
Securities of the series shall 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
the purposes of the definition of "Outstanding" in Section 101;
(14) if the amount of payments of principal of and any premium
or interest on Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(15) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
-25-
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, if
so, the Depositary for such Global Security or Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including but not
limited to the dates for furnishing names and addresses for Securities
which are not interest bearing pursuant to Section 701(a).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the initial authentication of Securities
of that series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities.
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
-26-
such Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) that the form of such Securities has been established in
conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and this Section 303, if
all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers Certificate otherwise required pursuant
to Section 301 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the time of authentication and delivery upon original issuance of the first
Security of such series to be issued and, if such other documents reasonably
apply to the authentication and delivery of such other Security.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold
-27-
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at its office in Boise, Idaho,
designated pursuant to Section 1002, a register (being herein sometimes referred
to as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities.
The Company initially shall act as "Security Registrar" at such office
for the purpose of registering Securities and transfers of Securities as herein
provided. If at any time the Company shall determine not to act as Security
Registrar or shall fail to maintain a Security Register, the Company hereby
appoints the Trustee as its agent to maintain a Security Register and to act as
Security Registrar. At all reasonable times, the Security Register shall be open
for inspection by the Trustee.
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Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall cancel the surrendered Security, record the transaction in the
Security Register and either issue or cause to be issued one or more new
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor or, at the direction of the Trustee, an
Authenticating Agent or any other agent acceptable to the Trustee, credit the
proper principal amount of such Securities to the account of the Person entitled
thereto maintained in the Security Register. Upon request, the Company shall
issue or cause to be issued one or more new Securities of the same series, of
authorized denominations and of an aggregate principal amount requested, up to
the amount held in the account of such person.
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 shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Security Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Trustee and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such
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mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of Persons other than
the Depositary for such series or its nominee if, but only if, (i) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or at any time ceases to be a clearing
agency registered as such under the Securities Exchange Act of 1934, as amended,
(ii) the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable or (iii) there shall have occurred and
be continuing an Event or Default with respect to the Securities of such series.
And Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such Depositary
shall direct.
Notwithstanding any other provision of this Indenture, a Global Security
may not be transferred 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.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee or the Company,
in exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding shall be
executed, authenticated and delivered.
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 may execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding. In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable and the Holder has complied with the provisions of the second
paragraph of this Section, the Company in its discretion may, instead of issuing
a new Security, pay or authorize the payment of such Security without surrender
thereof except in the case of a mutilated Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and another expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money
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when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the Payment of
such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security,
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and such Depositary shall be treated by the Company, the Trustee, and any agent
of the Company or the Trustee as the owner of such Global Security for all
purposes whatsoever.
SECTION 309. CANCELLATION.
All Securities surrendered for registration of transfer or exchange
shall, if surrendered to any Person other than the Security Registrar, be
delivered to the Security Registrar and shall be promptly cancelled by it. The
Company may at any time deliver to the Security Registrar, or if the Company is
acting in such capacity to the Trustee or the Authenticating Agent, 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 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 shall be promptly cancelled by
the Security Registrar, the Trustee or the Authenticating Agent. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Security Registrar, the Trustee or the
Authenticating Agent shall be disposed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of a series, the provisions of this Indenture
(except as to (i) remaining rights of registration of transfer, substitution and
exchange of the series of Securities, (ii) rights of Holders under Section 508
to receive payments of principal of and premium, if any, and interest on, the
Securities, and other rights, duties and obligations of the Holders of
Securities of any series with respect to the amounts, if any, deposited with the
Trustee with respect to that series, (iii) if applicable, remaining obligations
of the Company to make mandatory sinking fund payments and (iv) the rights,
obligations and immunities of the Trustee hereunder) as it relates to such
Securities shall no longer be in effect, and the Trustee, at the expense of the
Company, shall, upon Company Request, execute proper instruments acknowledging
the same if:
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(a)(l) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation;
(2) the Company has paid or caused to be paid all other sums
payable under this Indenture in respect of the Securities of such
series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction of the entire
indebtedness on all Securities of any such series and the discharge of
the Indenture as it relates to such Securities have been complied with;
or
(b)(l) all Securities of such series not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense of the Company;
(2) the condition described in paragraph (1) of Section 402 has
been satisfied;
(3) the conditions described in paragraphs (a)(2) and (a)(3) of
this Section 401 have been satisfied; and
(4) the Company has received an Opinion of Counsel to the effect
that the satisfaction, discharge and defeasance contemplated by this
Section 401 will not violate the then applicable rules of, or any
related undertaking of the Company to, any nationally-recognized
securities exchange on which Securities of that series are listed; or
(c) Except as otherwise specified pursuant to Section 301:
(1) the conditions referred to or described in paragraphs
(b)(2), (b)(3) and (b)(4) of this Section 401 have been satisfied;
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(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 402 or on the 91st day after the date of such deposit; PROVIDED,
HOWEVER, that should that condition fail to be satisfied on or before
such 91st day, the Trustee shall promptly, upon satisfactory receipt of
evidence of such failure, return such deposit to the Company; and
(3) the Company has delivered to the Trustee an Opinion of
Counsel of a nationally-recognized independent tax counsel to the effect
that Holders of the Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit
and the satisfaction, discharge and defeasance contemplated by this
paragraph (c) of this Section 401 and will be subject to Federal income
tax in the same amounts and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred.
SECTION 402. DEFEASANCE OF SECURITIES OF ANY SERIES.
The Company may, except as otherwise specified pursuant to Section 301,
omit to comply with Section 301, Section 304, Section 801 (except paragraph (1))
and Section 1004 of this Indenture and paragraphs (3) and (4) of Section 501 of
this Indenture shall not apply, as all of such provisions relate to Securities
of any series, so long as the Securities of such series remain Outstanding and,
thereafter, all provisions of this Indenture in respect of such Securities shall
no longer be in effect except the Company's and the Trustee's rights and
obligations under Sections 403, 603, 607 and 1003, and the Trustee, at the
expense of the Company shall, upon Company Request, execute proper instruments
acknowledging the same if:
(1) The Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (A) money in an amount,
or (B) U.S. Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms will
provide on or before the due date of any payment in respect of such
series of Securities money in an amount, or (C) a combination thereof,
sufficient, after payment, based on then applicable law, of all Federal,
state and local taxes in respect thereof payable, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge (i) the principal of (and premium, if any) and each instalment
of principal (and premium, if any) and interest on the Outstanding
Securities of that series on the Stated Maturity of such principal or
instalment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments or payments pursuant to any call for
redemption
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applicable to Securities of such series on the day on which such
payments are due and payable in accordance with the terms of the
Indenture and of such Securities;
(2) No Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) The interest of the Holders in such deposit shall have been
duly perfected under the applicable provisions of the Uniform Commercial
Code;
(4) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; and
(5) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
SECTION 403. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 401 or 402 and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the
Trustee, shall be held in trust and applied by it, in accordance with
the provisions of the Securities of the respective series for which such
deposit was made and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such
money and U.S. Government Obligations have been deposited with or
received by the Trustee as contemplated by Section 401 or 402.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 401 or 402 or the
interest and principal received in respect of such obligations, other
than any such tax, fee or other charge payable by or on behalf of
Holders. The Company shall be entitled to prompt notice of an assessment
or the commencement of any proceeding for which indemnification may be
sought under this Section 403 and, at its election, to contest such
assessment or to participate in, assume the defense of, or settle such
proceeding.
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(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or money
held by it as provided in Section 401 or 402 which, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required to be
deposited for the purpose for which such obligations or money were
deposited or received.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) 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 whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
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(4) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Act or any other applicable
federal or state law, or appointing a 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 unstayed and in effect for a period of 60 consecutive days; or
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(5) the institution by the Company of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Act or any other applicable
federal or state law, or the consent by it to the filing of any such
petition or the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of any
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
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in Section 501(1), (2) or (8) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that series may declare
the principal amount (or, if the 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 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 declarations such principal amount (or
specified amount) shall become immediately due and payable.
If an Event of Default described in Section 501(3), (4), (5), (6) or (7)
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities may declare
the principal amount (or, if any of the Outstanding Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of those Original Issue Discount Securities) of all of
the Outstanding Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to all
Securities or with respect to Securities of any series has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of all Outstanding Securities or of
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the Outstanding Securities of that series, as the case may be, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and 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 prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be permitted by applicable law, interest on
any overdue principal (and premium, if any) and
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on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of 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.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and
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(iii) unless prohibited by law or applicable regulations, to
vote on behalf of the Holders in any election of a trustee in bankruptcy
or other person performing similar functions;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607. 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 except, as aforesaid, for the election of a trustee in bankruptcy or
other person performing similar functions.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee: shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities 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 and each
predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium if any) and interest on the Securities in
respect of which
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or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute a proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) an Event of Default shall have occurred and be continuing
and such Holder has previously given written notice to the Trustee of
such continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series.
It is understood and intended that no one or more Holders of any series
of Securities shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
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Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any
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proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such series,
PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) subject to the provisions of Section 601, the Trustee shall
have the right to decline to follow such direction if the Trustee shall
determine that such direction would be unduly prejudicial to any Holders
not joining in giving said direction or would involve the Trustee in any
personal liability, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than 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
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this
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Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
require meets of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture.
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(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of
any series, determined as provided in Section 512, relating to
the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under the Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit or cause to
be transmitted by mail to all Holders of Securities of such series, as their
names and addresses appear in the
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Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and PROVIDED, FURTHER,
that in the case of any default of the character specified in Section 501(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
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
shall be sufficiently evidenced by a Company Request or Company Order or
as otherwise expressly provided herein and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this indenture at the request or
direction of any of the Holders
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pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
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Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Trustee or any Paying Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in performance of its
duties under or with respect to this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its misconduct, bad faith or negligence; and
(3) to indemnify each of the Trustee, any predecessor trustee or
their agents for, and to hold each of them harmless against, any loss,
liability or expense incurred without negligence or bad faith on the
part of the person seeking such indemnity, arising out of or in
connection with the acceptance or administration of the trust or trusts
or the performance of their duties hereunder, including the costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate
such conflicting interest or resign in the manner and with the effect
hereinafter specified in this Article.
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(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section, the Trustee shall, within
10 days after the expiration of such 90-day period, transmit or cause to
be transmitted by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest, with respect to the Securities of
any series, if
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities
issued under this Indenture, PROVIDED that there shall be
excluded from the operation of this paragraph [the indenture
dated as of [_______ __], [19__], between the Company and
Trustee pursuant to which the Company issued its __________] and
this Indenture with respect to the Securities of any series
other than that series or any indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding, if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and such other indenture
or indentures are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found
and declared by order pursuant to Section 305(b) or
Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this
Indenture and the provisions of such other indenture or
indentures which are so likely to involve a material
conflict of interest as to make it necessary in the
public interest or for the protection of investors to
disqualify the Trustee from acting as such under this
Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden
of proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under
this Indenture and such other indenture or indentures is
not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee
from acting as such under one of such indentures;
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(2) the Trustee or any of its directors or
executive officers is an obligor upon the Securities or
an underwriter for the Company;
(3) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under
direct or indirect common control with the Company or an
underwriter for the Company;
(4) the Trustee or any of its directors or
executive officers is a director, officer, partner,
employee, appointee or representative of the Company, or
of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both,
of the Company but may not be at the same time an
executive officer of both the Trustee and the Company;
(ii) if and so long as the number of directors of the
Trustee in office is more than nine, one additional
individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity
of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any
other similar capacity, or, subject to the provisions of
paragraph (1) of this Subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or
by any director, partner or executive officer thereof,
or 20% or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is
in default (as hereinafter in this Subsection defined),
(i) 5% or more of the voting securities, or 10% or more
of any other class of security, of the Company not
including the Securities issued under this Indenture and
securities issued under any other indenture under which
the Trustee is also trustee, or (ii) 10% or more of any
class of security of an underwriter for the Company;
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(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this Subsection defined), 5% or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or
controls directly if or indirectly or is under direct or
indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this Subsection defined), 10% or more of
any class of security of any person who, to the knowledge of
the Trustee, owns 50% or more of the voting securities of the
Company; or
(9) the Trustee owns, on May 15 in any calendar year, in
the capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25% or more of the
voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph
(6), (7) or (8) of this Subsection. As to any such securities of
which the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any
such class of security. Promptly after May 15 in each calendar
year, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such
May 15. lf the Company fails to make payment in full of the
principal of (or premium, if any) or interest on any of the
Securities when and as the same becomes due and payable, and
such failure continues for 30 days thereafter, the Trustee shall
make a prompt check of its holdings of such securities in any of
the above-mentioned capacities as of the date of the expiration
of such 30-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph, all such securities so
held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of
this Subsection.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that
the ownership of such
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percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to
the Company, means every person who, within three years prior to
the time as of which the determination is made, has purchased
from the Company with a view to, or has offered or sold for the
Company in connection with, the distribution of any security of
the Company outstanding at such time, or has participated or has
had a direct or indirect participation in any such undertaking,
or has participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation or any individual performing similar functions with
respect to any organization, whether incorporated or
unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization or a government
or political subdivision thereof. As used in this paragraph, the
term "trust" shall include only a trust
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where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to
vote in the direction or management of the affairs of a person.
(5) The term "Company" means an obligor upon the
Securities.
(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of
such person are entitled to cast in the direction or management
of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount," when used in regard to
securities, means the principal amount if relating to evidences
of indebtedness, the number of shares if relating to capital
shares and the number of units if relating to any other kind of
security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall
not be deemed outstanding within the meaning of this definition:
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(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same
class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the
issuer, if the obligation evidenced by such other class
of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof
as security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(iv) securities held in escrow if placed in
escrow by the issuer thereof;
(5) A security shall be deemed to be of the same class
as another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
PROVIDED, HOWEVER, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series different classes and PROVIDED, FURTHER, that, in the
case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000 subject to supervision or examination by federal, state
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause, the Company, by a
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Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities delivered to
the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and
all others similarly situated, subject to Section 514, petition
any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a
successor Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its prior claim, if
any, provided for in Section 607. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within four months prior to a default, as
defined in Subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee
shall set apart and hold in a special account for the benefit of the
Trustee individually, the Holders of the Securities and the holders of
other indenture securities, as defined in Subsection (c) of this
Section:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect
of principal or interest, effected after the beginning of such
four-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of
this Subsection, or from the exercise of any right of set-off
which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such four-month period, or an amount equal to the
proceeds of any such property, if disposed of, SUBJECT, HOWEVER,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
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(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other
than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made
in cash, securities or other property in respect of
claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable
state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if
such property was so held prior to the beginning of such
four-month period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if
such claim was created after the beginning of such
four-month period and such property was received as
security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received
the Trustee had no reasonable cause to believe that a
default, as defined in Subsection (c) of this Section,
would occur within four months; or
(D) to receive payment on any claim referred
to in paragraph (B) or (C), against the release of
any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be,
to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four-month period for property
held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any
of such paragraphs is created in renewal of or in substitution for or
for the purpose of repaying or refunding any pre-existing claim of the
Trustee as such creditor, such claim shall have the same status as such
pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other
indenture securities in such manner that the Trustee, the Holders and
the holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on claims
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filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable state law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the
Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable state law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law, whether such distribution is
made in cash, securities or other property, but shall not include any
such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion
among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the
fairness of the distributions to be made to the Trustee and the Holders
and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions
of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such four-month period shall be subject to the provisions
of this Subsection as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the
beginning of such four-month period, it shall be subject to the
provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning
of such four-month period; and
(ii) such receipt of property or reduction of claim
occurred within four months after such resignation or removal.
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(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice of
such advances and of the circumstances surrounding the making
thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture, transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
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(2) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture (i) under which the Trustee is also
trustee, (ii) which contains provisions substantially similar to
the provisions of this Section, and (iii) under which a default
exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf and subject to the
direction of the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof and to cancel
Securities pursuant to Section 309, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. The Trustee hereby
initially appoints the Idaho First National Bank as an Authenticating Agent in
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Boise, Idaho. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business 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, state or District of Columbia authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent 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 case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail or cause to be mailed 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
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
While an appointment with respect to one or more series is in effect
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
----------------------------
, as Trustee
By
----------------------------
AUTHORIZED OFFICER
OR
[_________________________], as
Authenticating Agent for the Trustee
By
----------------------------
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) not later than 15 days after each Regular Record Date, in
the case of Securities that are interest bearing, and on each date
determined pursuant to Section 301 in the case of Securities that are
not interest bearing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the Securities as
of such Regular Record Date or as of such other date, as the case may
be, and
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(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if so acting.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each
series of Securities contained in the most recent list furnished to the
Trustee as provided in Section 701 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this
Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail, or cause to be mailed, to each Holder whose name and
address appear in the information preserved at the time by the Trustee
in accordance with Section 702(a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses
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of mailing, unless within five days after such tender the Trustee shall
mail, or cause to be mailed, to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders or would
be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail, or cause to be mailed,
copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise
the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year [____], the Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report
dated as of such date with respect to:
(1) its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and
qualified under said Sections, a written statement to such
effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of
which it asserts or may assert a claim or charge, prior to that
of the Securities, on any property or funds held or collected by
it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so
remaining unpaid
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aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any
property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any
manner described in Section 613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance
of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is
to be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit, or cause to be transmitted, by
mail to all Holders, as their names and addresses appear in the Security
Register, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the
date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the
date of execution of this instrument) for the reimbursement of which it
asserts or may assert a claim or charge, prior to that of the
Securities, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this Subsection, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of the Securities Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
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The Company shall:
(1 ) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the
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properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any, on)
and interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger by the Company with or into any other
corporation, or any conveyance or transfer by the Company of its properties and
assets substantially as an entirety to any Person in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor corporation which shall theretofore become such in the manner
described in Section 801) shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto for any of the following
purposes:
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(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add an additional Event of Default with respect to all
Securities or any series of Securities (and if such Event of Default is
applicable to less than all series of Securities, stating that such
Event of Default is applicable solely to such series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as
to principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in aggregate
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
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changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of the 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 change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or Sections 513
or 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be
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fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and that such supplemental indenture, when executed and delivered by
the Company, will constitute a valid and binding obligation of the Company in
accordance with its terms. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities of each series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series without charge to
the Holders.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
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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 any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
Until changed by the Company in accordance with this Indenture, the
Company will maintain a Place of Payment at the Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies in or outside any Place of Payment where the Securities of
one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; PROVIDED, HOWEVER, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. The office of the Company in
Boise, Idaho, is hereby initially designated as such an office.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
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(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, in The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days
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from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement signed by the Chairman of the Board,
the President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Controller or an Assistant Controller of the Company, stating, as to each
signer thereof, that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, the
Company is not in default in the fulfillment of any of its obligations
under this Indenture, or specifying each such default known to him and
the nature and status thereof.
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1002 to 1005, inclusive, with
respect to the Securities of any series, if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
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Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated in Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date 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 shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restrictions.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected prior to the Redemption
Date by the Trustee or the Security Registrar with the approval of the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee or the Security Registrar shall 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
for Securities of that series.
The party selecting the Securities to be redeemed shall promptly notify
the parties to this Indenture in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price and accrued
interest 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,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Any notice which is mailed in the manner herein provided shall be
presumed conclusively to have been duly given, whether or not the Holder
receives such notice; and failure duly to give such notice by mail, or any
defect in such notice, to the Holder of any Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date. In the
event of any failure on the part of the Company to deposit such money prior to
any Redemption Date, the Trustee shall not use any monies or U.S. Government
Obligations deposited with it pursuant to Sections 401 or 402 for the payment of
any Redemption Price, unless originally deposited for such purpose.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified plus accrued interest, and from and after
such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities-shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall 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 Regular Record Date or Special Record Date according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company, the Trustee and the Security Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, 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; PROVIDED, that if a Global Security is
so surrendered, such new Security so issued shall be a new Global Security in a
denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company 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 shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date the Trustee shall select or cause to be selected the Securities to be
redeemed upon
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such sinking fund payment date in the manner specified in Section 1103 and not
less than 30 days before each sinking fund payment date cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness and that
no payment on account of principal of, premium, if any, or interest on the
Securities and no acquisition of, or payment on account of any sinking fund for,
the Securities may be made unless full payment of all amounts then due for
principal, premium, if any, and interest then due on all Senior Indebtedness by
reason of the maturity thereof (by lapse of time, acceleration or otherwise) has
been made or duly provided for in cash or in a manner satisfactory to the
holders of such Senior Indebtedness.
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of the Company's assets in connection with any
dissolution, winding up, liquidation or reorganization of the Company, whether
voluntary or involuntary, in bankruptcy, insolvency or receivership proceedings
(each such event, if any, herein sometimes referred to as a "Proceeding"), or
upon an assignment for the benefit of creditors or otherwise: (i) all Senior
Indebtedness (including without limitation all interest accruing on or after the
filing of any petition in bankruptcy relating to the Company at the relevant
contractual rate, whether or not such claim for post-petition interest is
allowed in such Proceeding) must be paid in full in cash before the Holders of
the Securities are entitled to any payments or distributions of any kind or
character (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company (including
the Securities) subordinated to the payment of the Securities), and (ii) any
payment or distribution of the Company's assets of any kind or character,
whether in cash, securities or other property, which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of such Senior
Indebtedness
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(or their representative or trustee) in accordance with the priorities then
existing among such holders until all Senior Indebtedness shall have been paid
in full in cash before any payment or distribution is made to the Holders of the
Securities.
In the event that notwithstanding the subordination provisions set forth
herein, any payment or distribution of assets of any kind or character is made
on the Securities at a time when the respective payment is not permitted to be
made as a result of the subordination provisions described above and before all
Senior Indebtedness is paid in full in cash, the Trustee or the holders of the
Securities receiving such payment will be required to pay over such payment or
distribution to the holders of such Senior Indebtedness.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of reorganization or
readjustment which securities are subordinated in right of payment to all then
outstanding Senior Indebtedness to substantially the same extent as the
Securities are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article 8 shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article Eight.
SECTION 1303. PAYMENT BLOCKAGE UPON ACCELERATION OF SENIOR INDEBTEDNESS, ETC.
During the continuance of any event of default with respect to any
Senior Indebtedness pursuant to which the maturity thereof may be accelerated,
upon the occurrence of (a) receipt by the Trustee of written notice from the
holders of a majority of the outstanding principal amount of the Senior
Indebtedness or their representative, or (b) if such event of default results
from the acceleration of the Securities, the date of such acceleration, no such
payment may be made by the Company upon or in respect of the Securities for a
period ("Payment Blockage Period") commencing on the earlier of the date of
receipt of such notice or the date of such acceleration and ending 179 days
thereafter (unless such Payment Blockage Period shall be terminated by written
notice to the Trustee from the holders of a majority of the outstanding
principal amount of such Senior Indebtedness or their representative who
delivered such notice); provided, however, that notwithstanding anything herein
to the
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contrary, in no event will a Payment Blockage Period extend beyond 179 days from
the date on which such Payment Blockage Period was commenced; provided further,
that not more than one Payment Blockage Period may be commenced with respect to
the Securities during any period of 360 consecutive days. For all purposes of
this Section, no event of default which existed or was continuing on the date of
the commencement of any Payment Blockage Period with respect to the Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis for the commencement of a second Payment Blockage Period by the holders of
such Senior Indebtedness or their representative whether or not within a period
of 360 consecutive days unless such event of default shall have been cured or
waived for a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or any Holder of the Securities prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known, as set forth in Section 1310, to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
SECTION 1304. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on, or any other amounts owing
with respect to, any Senior Indebtedness when the same becomes due and payable
or in the event any judicial proceeding shall be pending with respect to any
such default, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment or distribution of any kind or
character, whether in cash, properties or Securities shall be made by the
Company on account of principal of (or premium, if any) or interest, if any, on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary.
The Company shall give prompt written notice to the Trustee of any
default in payment of principal of or interest on any Senior Indebtedness;
provided that no failure to give such a notice shall have any effect whatsoever
on the subordination provisions described herein.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Securities prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known as set forth in Section 1310, to the
Trustee or, as the case may
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be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Sections 1303 and 1304, from making payments at any time
of principal of (and premium, if any) or interest on the Securities, or (b)
except with respect to the payment over provisions of this Article, the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, the Trustee did not have knowledge that
such payment would have been prohibited by the provisions of this Article.
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Indebtedness of the
Company to substantially the same extent as the Securities are subordinated to
the Senior Indebtedness and is entitled to like rights of subrogation by reason
of any payments or distributions made to holders of such Senior Indebtedness) to
the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments pursuant to
the provisions of this Article to the holders of Senior Indebtedness by Holders
of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness.
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
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The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Company and the Holders of the
Securities, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Indebtedness, or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article and appoints the Trustee his or her attorney-in-fact for any and
all such purposes.
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
SECTION 1310. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written
-85-
notice thereof from the Company or a person representing itself as a holder of
Senior Indebtedness or from any trustee, agent or representative therefor.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Article 6, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a Proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 6, shall not be liable to the holder of any
Senior Indebtedness if it shall pay over or deliver to Holders, the Company, or
any other Person, cash, property or securities to which any holder of Senior
Indebtedness shall be entitled to by virtue of this Article or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and, subject to the requirements of the Trust Indenture Act,
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intent and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
-86-
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-87-
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.
BOISE CASCADE CORPORATION
By
---------------------------------------
TREASURER
[SEAL]
Attest:
- --------------------------------
ASSISTANT SECRETARY
Assistant Secretary
[NAME OF TRUSTEE]
By
---------------------------------------
VICE PRESIDENT
[SEAL]
Attest:
- --------------------------------
ASSISTANT SECRETARY
-88-
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
On the day of , [1999], before me personally came
to me known, who, being by me duly sworn, did depose and say that he is ,
Treasurer of Boise Cascade Corporation one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
----------------------------------------
NOTARY PUBLIC
STATE OF IDAHO
State of New York )
) ss.:
COUNTY OF NEW YORK )
On the day of , [1999], before me personally
came to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of ____________________________, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
----------------------------------------
NOTARY PUBLIC
STATE OF NEW YORK
-89-
Exhibit 4.7
================================================================================
BOISE CASCADE CORPORATION
TO
-----------------------------
---------------
JUNIOR SUBORDINATED DEBT SECURITIES
INDENTURE
DATED AS OF ____________________
---------------
================================================================================
BOISE CASCADE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss. 310(a)(1).............................................................. 609
(a)(2).............................................................. 609
(a)(3).............................................................. Not Applicable
(a)(4).............................................................. Not Applicable
(b)................................................................. 608
610
ss. 311(a)................................................................. 613(a)
(b)................................................................. 613(b)
(b)(2).............................................................. 703(a)(2)
703(b)
ss. 312(a)................................................................. 701
702(a)
(b)................................................................. 702(b)
(c)................................................................. 702(c)
ss. 313(a)................................................................. 703(a)
(b)................................................................. 703(b)
(c)................................................................. 703(a), 703(b)
(d)................................................................. 704
- -------------
Note: This reconciliation and the shall not, for any purpose, be
deemed to be a part of the Indenture.
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss. 314(a)................................................................ 704
(b)................................................................ Not Applicable
(c)(1)............................................................. 102
(c)(2)............................................................. 102
(c)(3)............................................................. Not Applicable
(d)................................................................ Not Applicable
(e)................................................................ 102
ss. 315(a)................................................................ 601(a)
(b)................................................................ 602
703(a)(6)
(c)................................................................ 601(b)
(d)................................................................ 601(c)
(d)(1)............................................................. 601(a)(1)
(d)(2)............................................................. 601(c)(2)
(d)(3)............................................................. 601(c)(3)
(e)................................................................ 514
ss. 316(a)................................................................ 101
(a)(1)(A).......................................................... 502
512
(a)(1)(B).......................................................... 513
(a)(2)............................................................. Not Applicable
(b)................................................................ 508
ss. 317(a)(1)............................................................. 503
(a)(2)............................................................. 504
(b)................................................................ 1003
ss. 318(a)................................................................ 107
TABLE OF CONTENTS
PAGE
INDENTURE...................................................................................
RECITALS OF THE COMPANY.....................................................................
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS..................................................................
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.........................................
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.......................................
SECTION 104. ACTS OF HOLDERS..............................................................
SECTION 105. NOTICES. ETC., TO TRUSTEE AND COMPANY........................................
SECTION 106. NOTICE TO HOLDERS; WAIVER....................................................
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT............................................
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.....................................
SECTION 109. SUCCESSORS AND ASSIGNS.......................................................
SECTION 110. SEPARABILITY CLAUSE..........................................................
SECTION 111. BENEFITS OF INDENTURE........................................................
SECTION 112. GOVERNING LAW................................................................
SECTION 113. LEGAL HOLIDAYS...............................................................
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY..............................................................
SECTION 202. FORM OF FACE OF SECURITY.....................................................
SECTION 203. FORM OF REVERSE OF SECURITY..................................................
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION..............................
SECTION 205. FORM OF LEGEND FOR GLOBAL SECURITIES.........................................
ARTICLE THREE
THE SECURITIES
-i-
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.........................................
SECTION 302. DENOMINATIONS................................................................
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING...............................
SECTION 304. TEMPORARY SECURITIES.........................................................
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE..........................
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.............................
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED...............................
SECTION 308. PERSONS DEEMED OWNERS........................................................
SECTION 309. CANCELLATION.................................................................
SECTION 310. COMPUTATION OF INTEREST......................................................
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES..........
SECTION 402. DEFEASANCE OF SECURITIES OF ANY SERIES......................................
SECTION 403. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.................................
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT...........................................................
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..........................
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.............
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM............................................
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.................
SECTION 506. APPLICATION OF MONEY COLLECTED..............................................
SECTION 507. LIMITATION ON SUITS.........................................................
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST...
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..........................................
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..............................................
SECTION 511. DELAY OR OMISSION NOT WAIVER................................................
SECTION 512. CONTROL BY HOLDERS..........................................................
SECTION 513. WAIVER OF PAST DEFAULTS.....................................................
SECTION 514. UNDERTAKING FOR COSTS.......................................................
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS............................................
-ii-
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.........................................
SECTION 602. NOTICE OF DEFAULTS..........................................................
SECTION 603. CERTAIN RIGHTS OF TRUSTEE...................................................
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES......................
SECTION 605. MAY HOLD SECURITIES.........................................................
SECTION 606. MONEY HELD IN TRUST.........................................................
SECTION 607. COMPENSATION AND REIMBURSEMENT..............................................
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.....................................
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...........................
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................................
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.................
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...........................
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.........................................
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS...................
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS......................
SECTION 703. REPORTS BY TRUSTEE..........................................................
SECTION 704. REPORTS BY COMPANY..........................................................
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC................................................
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED...........................................
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..........................
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.............................
-iii-
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.......................................
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES...........................................
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.........................................
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..........................
ARTICLE TEN
COVENANT
SECTION 1001. PAYMENT OF PRINCIPAL; PREMIUM AND INTEREST..................................
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.............................................
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...........................
SECTION 1004. STATEMENT AS TO COMPLIANCE..................................................
SECTION 1005. CORPORATE EXISTENCE.........................................................
SECTION 1006. WAIVER OF CERTAIN COVENANTS.................................................
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE....................................................
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.......................................
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...........................
SECTION 1104. NOTICE OF REDEMPTION........................................................
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.................................................
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.......................................
SECTION 1107. SECURITIES REDEEMED IN PART.................................................
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE....................................................
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.......................
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND...................................
ARTICLE THIRTEEN
SURBORDINATION OF SECURITIES
-iv-
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS...............................
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION...................................
SECTION 1304. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT..............................
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT.............................................
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.....................
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.................................
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION.........................................
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS.......................................
SECTION 1310. NOTICE TO TRUSTEE...........................................................
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT..............
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS....................
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS............................................
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENT..........................................
-v-
INDENTURE
INDENTURE, dated as of [_________ __], [1999], between BOISE CASCADE
CORPORATION, a corporation duly organized and existing under the laws of the
state of Delaware (herein called the "Company"), having its principal office
at One Jefferson Square, Boise, Idaho 83728, and ,
a trust company (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly.
whether through the ownership of voting securities, by contract or otherwise and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company,
the Executive Committee of such board, or any other committee authorized by such
board to act hereunder.
"Board Resolution" means a copy of one or more resolutions certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital
-2-
stock shall be limited to a fixed sum or percentage with respect to the rights
of the holders thereof to participate in dividends and in the distribution of
assets upon the voluntary or involuntary liquidation, dissolution or winding up
of such corporation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in the
Borough of Manhattan. The City of New York, New York, at which at any particular
time its corporate trust business shall be administered. As of the date of this
Indenture, the office of the Trustee at which its corporate trust business is
conducted is located at [______________________________].
"Debt", with respect to any Person, means (i) all indebtedness of such
Person for borrowed money, whether or not the recourse of the lender is to the
whole of the assets of the borrower or only to a portion thereof, and including
all indebtedness evidenced by notes, bonds, debentures or other securities sold
for money, (ii) all indebtedness of such Person incurred or assumed in the
acquisition of any business, real property or other assets, except goods and
materials acquired in the ordinary course of the conduct of the acquirer's usual
business, (iii) all capital lease obligations of such Person, (iv) hedging
obligations of such Person, (v) guarantees by such Person of indebtedness of a
type described in the preceding four clauses (i) through (iv) of any other
person, and (vi) renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any such indebtedness (including, without
limitation, exchange offers), obligation or guarantee of such Person.
"Defaulted Interest" has the meaning specified in Section 307.
-3-
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Securities Exchange Act of 1934, as
amended, specified for that purpose, as contemplated by Section 301, with
respect to the Securities of such Series.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security bearing the legend required by Section
205 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee and registered in the name of such Depositary or
nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
"Interest" when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who may be an
employee of the Company or other counsel who shall be satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which by its terms
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof.
-4-
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made, and provided further, that Securities for whose
payment or redemption money or U.S. Government Obligations have been
deposited with the Trustee pursuant to Section 401 or 402 of this Indenture
shall be deemed Outstanding for all purposes of this Indenture until their
Stated Maturity or Redemption Date, as the case may be, or until otherwise
determined not to be Outstanding pursuant to clauses(i) and (iii) hereof;
and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
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,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. In determining whether the Holders of
the requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall
-5-
be the amount of the principal thereof that would be due and payable as of
the date of such determination upon a declaration of acceleration of the
Maturity thereof on such date pursuant to Section 502.
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 or whether a
quorum is present at a meeting of Holders of Securities (i) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of a Security in denominated
in a foreign currency or currencies, including composite currencies, shall be
the U.S. dollar equivalent, determined on the date of original issuance of such
Security the manner provided as contemplated by Section 301, of the principal
amount (or, in the case of an Original Issue Account Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (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 shall be disregarded and deemed not to
be Outstanding except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, or upon any such determination as to the presence of
a quorum, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Period" has the meaning stated in Section 1303.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable.
-6-
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning stated in Section 1302.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
business;
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means any Debt incurred, assumed or guaranteed by the
Company, whether presently outstanding or incurred, assumed or guaranteed in the
future, including (i) the principal of, and premium, if any, on such Debt, (ii)
interest on such Debt, including interest accruing after the filing of a
petition initiating any Proceeding pursuant to any bankruptcy law, but only to
the extent allowed or permitted to the Holder of such Debt against the
bankruptcy or any other insolvency estate of the Company in such Proceeding,
(iii) any accrued original issue discount on such Debt, (iv) other amounts due
on or in connection with such Debt, and (v) all renewals, extensions and
refundings of any such Debt; PROVIDED, HOWEVER, that the following shall not
constitute Senior Indebtedness: Debt issued under the junior indenture (i) any
other Debt which expressly provides (x) that such Debt shall not be senior in
right of payment to the Securities, (ii) any Debt of the Company in respect of
the Securities, (iii) any Debt or liability for compensation to employees, for
goods or materials purchased in the ordinary course of business or for services,
(iv) any Debt of the Company to any Subsidiary for money borrowed or advance
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from such Subsidiary, and (v) any liability for federal, state, local or other
taxes owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trust" shall mean each of Boise Cascade Trust I, Boise Cascade Trust
II, and Boise Cascade Trust III, as applicable, each a Delaware business trust
or any other similar trust created for the purpose of issuing preferred
securities in connection with the issuance of Securities under this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged, or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case are not
callable or redeemable at the option of the issuer thereof. U.S. Government
Obligations shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; PROVIDED, HOWEVER, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
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"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons may certify or give an opinion as to
-9-
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representation by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver under the Indenture,
the principal amount of an Original Issue Discount Security that may be
counted in making such determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that could be declared to be due and payable upon acceleration
under Section 502 pursuant to the terms of such Original Issue Discount
Security at the time the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
-10-
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(c) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(d) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES. ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
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Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register. not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice mailed in the manner prescribed by this
Indenture shall be deemed to have been given whether or not received by any
particular Holder. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee. but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
If for any reason it shall be impossible to make publication of any notice
in a newspaper of general circulation in the Borough of Manhattan, The City of
New York, New York, when such publication is required to be given pursuant to
any provision of this Indenture, then such manner of publication or notification
as shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
-12-
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
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) 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 with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and 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.
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The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT --FOR
PURPOSES OF SECTION [1273] OF THE UNITED STATES INTERNAL REVENUE CODE OF 1954,
AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT AND
THE ISSUE DATE IS , 19 -- OR CORRESPONDING LEGEND APPROPRIATE AT THE
TIME OF ISSUANCE.]
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BOISE CASCADE CORPORATION
...........% ............... DUE ..........................
(Hereinafter "Securities")
No...................... $................................
BOISE CASCADE CORPORATION, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered assigns, the
principal sum of Dollars 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, semiannually on and in
each year, commencing , at the rate of % per annum, until the
principal hereof is paid or made available for payment [IF APPLICABLE, INSERT--,
at the rate of % per annum on any overdue principal and premium and (to the
extent that the payment of such interest shall be permitted by applicable law)
on any overdue 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 shall 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 shall be given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities 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 shall 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 shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be permitted by applicable law), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or
-15-
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be permitted by applicable law), which shall 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 shall 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 that purpose in The City of New York, New York, or
at the option of the Holder of this Security, at the office or agency of the
Company in Boise, Idaho, so long as the Company shall maintain an office in
Boise for such purpose, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; PROVIDED, HOWEVER that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture), and this
Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-16-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
BOISE CASCADE CORPORATION
By ...................................
Attest:
..............................................
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of the
Company 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, [limited in aggregate principal amount to $ , except as
otherwise provided in the Indenture].
[IF APPLICABLE, INSERT--The Securities of this series are subject to
redemption upon not less than 30-days' prior notice by mail, [IF APPLICABLE,
INSERT--(1) on in any 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 (2)] at any time [on or after
, 19 ], as a whole or from time to time in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
, %, and if redeemed] during the 12-month period
beginning of the years indicated,
YEAR REDEMPTION YEAR REDEMPTION
PRICE PRICE
-17-
and thereafter at a Redemption Price equal to 100% 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 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.]
[IF APPLICABLE, INSERT--The Securities of this series are subject to
redemption upon not less than 30-days' prior notice by mail, (1) on in
any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ], as a whole or from time to time in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning of the years indicated,
YEAR REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION OF THAN THROUGH OPERATION
THE SINKING FUND OF THE SINKING FUND
and thereafter at a Redemption Price equal to 100% 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.]
-18-
[Notwithstanding the foregoing, the Company may not, prior to ,
redeem any Securities of this series as contemplated by [Clause (2) 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.]
[The sinking fund for this series provides for the redemption on in
each year beginning with the year and ending with the year of
[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
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made--in the inverse order in
which they become due.]
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 THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,--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,--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
shall be equal to--INSERT FORMULA FOr DETERMINING THE AMOUNT. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), 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 shall 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 66 2/3% in aggregate 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
aggregate principal amount of the Securities, or in some cases of any one or
more series of Securities, at the time Outstanding, on behalf of the Holders of
all Securities, or such one or more series of Securities, to waive compliance by
the Company with certain provisions
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of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency, herein prescribed.
In the event of the merger or consolidation of the obligor on the
Securities into, or of the transfer of its assets substantially as an entirety
to, a successor corporation, such successor corporation shall assume payment of
the Securities and performance of every covenant of the Indenture on the part of
the predecessor corporation to be performed, and shall be substituted for the
predecessor corporation under the Indenture; and in the event of any such
transfer, such predecessor corporation shall be discharged from all obligations
and covenants under the Indenture and the Securities and may be dissolved and
liquidated, all as more fully set forth in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any Place of Payment duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company, the
Trustee 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 $ and any integral multiple 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 shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
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,
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whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
------------------------------
, as Trustee
By...............................
AUTHORIZED OFFICER
SECTION 205. FORM OF LEGEND FOR GLOBAL SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form or such other form as may be
determined pursuant to Section 201:
'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 of a Depositary. This Global Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.'
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
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The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of any Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
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;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(6) the place or places where the principal of (and premium, if any)
and any interest on Securities of the series shall be payable;
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the price or prices at
which, the period or periods within which
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and the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(11) if Section 401(c) is inapplicable to the Securities of the
series;
(12) if Section 402 is inapplicable to the Securities of the series;
(13) the currency or currencies, including composite currencies, in
which payment of the principal of and any premium and interest on
Securities of the series shall 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 the purposes of
the definition of "Outstanding" in Section 101;
(14) if the amount of payments of principal of and any premium or
interest on Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(15) if the principal of and any premium or interest on the Securities
of the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, including composite currencies, other
than that or those in which the Securities are stated to be payable, the
currency or currencies in which payment of the principal of and any premium
and interest on Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(16) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, if so, the
Depositary for such Global Security or Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including but not
limited to the dates for furnishing names and addresses for Securities
which are not interest bearing pursuant to Section 701(a).
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All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the initial authentication of Securities
of that series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities.
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 shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) that the form of such Securities has been established in
conformity with the provisions of this Indenture;
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(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and this Section 303, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Officers Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the time of authentication and delivery upon original issuance of the first
Security of such series to be issued and, if such other documents reasonably
apply to the authentication and delivery of such other Security.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. 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 309 together with a written statement
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
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Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at its office in Boise, Idaho,
designated pursuant to Section 1002, a register (being herein sometimes referred
to as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities.
The Company initially shall act as "Security Registrar" at such office for
the purpose of registering Securities and transfers of Securities as herein
provided. If at any time the Company shall determine not to act as Security
Registrar or shall fail to maintain a Security Register, the Company hereby
appoints the Trustee as its agent to maintain a Security Register and to act as
Security Registrar. At all reasonable times, the Security Register shall be open
for inspection by the Trustee.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
cancel the surrendered Security, record the transaction in the Security Register
and either issue or cause to be issued one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor or, at the direction of the Trustee, an Authenticating Agent or any
other agent acceptable to the Trustee, credit the proper principal amount of
such Securities to the account of the Person entitled thereto maintained in the
Security Register. Upon request, the Company shall issue or cause to be
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issued one or more new Securities of the same series, of authorized
denominations and of an aggregate principal amount requested, up to the amount
held in the account of such person.
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 shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Security Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Trustee and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of Persons other than
the Depositary for such series or its nominee if, but only if, (i) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or at any time ceases to be a clearing
agency registered as such under the Securities Exchange Act of 1934, as
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amended, (ii) the Company executes and delivers to the Trustee a Company Order
that such Global Security shall be so exchangeable or (iii) there shall have
occurred and be continuing an Event or Default with respect to the Securities of
such series. And Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as such
Depositary shall direct.
Notwithstanding any other provision of this Indenture, a Global Security
may not be transferred 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.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee or the Company, in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding shall be
executed, authenticated and delivered.
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 may execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding. In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable and the Holder has complied with the provisions of the second
paragraph of this Section, the Company in its discretion may, instead of issuing
a new Security, pay or authorize the payment of such Security without surrender
thereof except in the case of a mutilated Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and another expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture
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equally and proportionately with any and all other Securities of that series
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the Payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of
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such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary shall be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner of such
Global Security for all purposes whatsoever.
SECTION 309. CANCELLATION.
All Securities surrendered for registration of transfer or exchange shall,
if surrendered to any Person other than the Security Registrar, be delivered to
the Security Registrar and shall be promptly cancelled by it. The Company may at
any time deliver to the Security Registrar, or if the Company is acting in such
capacity to the Trustee or the Authenticating Agent, 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
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 shall be promptly cancelled by the
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Security Registrar, the Trustee or the Authenticating Agent. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Security Registrar, the Trustee or the
Authenticating Agent shall be disposed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of a series, the provisions of this Indenture
(except as to (i) remaining rights of registration of transfer, substitution and
exchange of the series of Securities, (ii) rights of Holders under Section 508
to receive payments of principal of and premium, if any, and interest on, the
Securities, and other rights, duties and obligations of the Holders of
Securities of any series with respect to the amounts, if any, deposited with the
Trustee with respect to that series, (iii) if applicable, remaining obligations
of the Company to make mandatory sinking fund payments and (iv) the rights,
obligations and immunities of the Trustee hereunder) as it relates to such
Securities shall no longer be in effect, and the Trustee, at the expense of the
Company, shall, upon Company Request, execute proper instruments acknowledging
the same if:
(a)(l) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306
and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation;
(2) the Company has paid or caused to be paid all other sums
payable under this Indenture in respect of the Securities of such series;
and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction of the entire
indebtedness on all Securities of any such series and the discharge of
the Indenture as it relates to such Securities have been complied with;
or
(b)(l) all Securities of such series not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii)
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense of the Company;
(2) the condition described in paragraph (1) of Section 402 has
been satisfied;
(3) the conditions described in paragraphs (a)(2) and (a)(3) of
this Section 401 have been satisfied; and
(4) the Company has received an Opinion of Counsel to the effect
that the satisfaction, discharge and defeasance contemplated by this
Section 401 will not violate the then applicable rules of, or any related
undertaking of the Company to, any nationally-recognized securities
exchange on which Securities of that series are listed; or
(c) Except as otherwise specified pursuant to Section 301:
(1) the conditions referred to or described in paragraphs
(b)(2), (b)(3) and (b)(4) of this Section 401 have been satisfied;
(2) no Event of Default or event which with notice or lapse
of time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 402 or on the 91st day after the date of such deposit;
PROVIDED, HOWEVER, that should that condition fail to be satisfied on
or before such 91st day, the Trustee shall promptly, upon satisfactory
receipt of evidence of such failure, return such deposit to the
Company; and
(3) the Company has delivered to the Trustee an Opinion of
Counsel of a nationally-recognized independent tax counsel to the
effect that Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and the satisfaction, discharge and defeasance
contemplated by this paragraph (c) of this Section 401 and will be
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subject to Federal income tax in the same amounts and in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred.
SECTION 402. DEFEASANCE OF SECURITIES OF ANY SERIES.
The Company may, except as otherwise specified pursuant to Section 301,
omit to comply with Section 301, Section 304, Section 801 (except paragraph (1))
and Section 1004 of this Indenture and paragraphs (3) and (4) of Section 501 of
this Indenture shall not apply, as all of such provisions relate to Securities
of any series, so long as the Securities of such series remain Outstanding and,
thereafter, all provisions of this Indenture in respect of such Securities shall
no longer be in effect except the Company's and the Trustee's rights and
obligations under Sections 403, 603, 607 and 1003, and the Trustee, at the
expense of the Company shall, upon Company Request, execute proper instruments
acknowledging the same if:
(1) The Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (A) money in an amount, or
(B) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide on
or before the due date of any payment in respect of such series of
Securities money in an amount, or (C) a combination thereof, sufficient,
after payment, based on then applicable law, of all Federal, state and
local taxes in respect thereof payable, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge (i) the principal of (and premium, if any) and each instalment of
principal (and premium, if any) and interest on the Outstanding Securities
of that series on the Stated Maturity of such principal or instalment of
principal or interest and (ii) any mandatory sinking fund payments or
analogous payments or payments pursuant to any call for redemption
applicable to Securities of such series on the day on which such payments
are due and payable in accordance with the terms of the Indenture and of
such Securities;
(2) No Event of Default or event which with notice or lapse of time
would become an Event of Default shall have occurred and be continuing on
the date of such deposit;
(3) The interest of the Holders in such deposit shall have been duly
perfected under the applicable provisions of the Uniform Commercial Code;
(4) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; and
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(5) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the defeasance contemplated by this Section
have been complied with.
SECTION 403. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 401 or 402 and all money received by the Trustee in
respect of U.S. Government Obligations deposited with the Trustee, shall be
held in trust and applied by it, in accordance with the provisions of the
Securities of the respective series for which such deposit was made and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest for whose payment such money and U.S. Government
Obligations have been deposited with or received by the Trustee as
contemplated by Section 401 or 402.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 401 or 402 or the interest and
principal received in respect of such obligations, other than any such tax,
fee or other charge payable by or on behalf of Holders. The Company shall
be entitled to prompt notice of an assessment or the commencement of any
proceeding for which indemnification may be sought under this Section 403
and, at its election, to contest such assessment or to participate in,
assume the defense of, or settle such proceeding.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Section 401 or 402 which, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited
for the purpose for which such obligations or money were deposited or
received.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
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"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) 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 whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
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(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company as bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under the Federal
Bankruptcy Act or any other applicable federal or state law, or appointing
a 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 unstayed and in effect for a period of 60
consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Act or any other applicable federal or state law, or the
consent by it to the filing of any such petition or the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of any 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 and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by the Company in furtherance of any such
action; or
(6) The Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in
connection with (i) the distribution of securities to holders of trust
securities in liquidation of their interests in such Trust, (ii) the
redemption of all of the outstanding trust securities of such Trust or
(iii) certain mergers, consolidations or amalgamations, each as permitted
by the amended declaration of such Trust.
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
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If an Event of Default described in Section 501(1), (2) or (7) with respect
to Securities of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the
principal amount (or, if the 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 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 declarations such principal amount (or
specified amount) shall become immediately due and payable.
If an Event of Default described in Section 501(3), (4), (5), (6) or (7)
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities may declare
the principal amount (or, if any of the Outstanding Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of those Original Issue Discount Securities) of all of
the Outstanding Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to all
Securities or with respect to Securities of any series has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of all Outstanding Securities or of the Outstanding Securities
of that series, as the case may be, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if (1) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and 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 prescribed therefor in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
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(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be permitted by applicable law, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of 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.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and
(iii) unless prohibited by law or applicable regulations, to vote
on behalf of the Holders in any election of a trustee in bankruptcy or
other person performing similar functions;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607. 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 except, as aforesaid, for the election of a trustee in bankruptcy or
other person performing similar functions.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or
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the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee: shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities 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 and each
predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium if any) and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute a
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) an Event of Default shall have occurred and be continuing and such
Holder has previously given written notice to the Trustee of such
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
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(3) 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;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series.
It is understood and intended that no one or more Holders of any series of
Securities shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to
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be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow such direction if the Trustee shall
determine that such direction would be unduly prejudicial to any Holders
not joining in giving said direction or would involve the Trustee in any
personal liability, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than 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
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
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(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the require meets
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section
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512, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under the Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit or cause to be
transmitted by mail to all Holders of Securities of such series, as their names
and addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
PROVIDED, HOWEVER, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and PROVIDED, FURTHER, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
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other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
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SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by law. The Trustee
or any Paying Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in performance of its duties under
or with respect to this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
misconduct, bad faith or negligence; and
(3) to indemnify each of the Trustee, any predecessor trustee or their
agents for, and to hold each of them harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the
person seeking such
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indemnity, arising out of or in connection with the acceptance or
administration of the trust or trusts or the performance of their duties
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, it shall, within 90 days after ascertaining that
it has such conflicting interest, either eliminate such conflicting
interest or resign in the manner and with the effect hereinafter specified
in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section, the Trustee shall, within 10
days after the expiration of such 90-day period, transmit or cause to be
transmitted by mail to all Holders, as their names and addresses appear in
the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest, with respect to the Securities of any series,
if
(1) the Trustee is trustee under another indenture under which
any other securities, or certificates of interest or participation in
any other securities, of the Company are outstanding, unless such
other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture,
PROVIDED that there shall be excluded from the operation of this
paragraph the indenture dated as of [________ __], [1999], between
the Company and Trustee pursuant to which the Company issued its
[___________________________________________] and this Indenture
with respect to the Securities of any series other than that series
or any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of
the Company are outstanding, if
(i) this Indenture and such other indenture or indentures
are wholly unsecured and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
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Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture and
the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture and such
other indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify
the Trustee from acting as such under one of such indentures;
(2) the Trustee or any of its directors or executive officers is
an obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of
the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an executive
officer, or both, of the Trustee and a director or an executive
officer, or both, of the Company but may not be at the same time an
executive officer of both the Trustee and the Company; (ii) if and so
long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this Subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or
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executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is
also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly if or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this Subsection. As to any
such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after May 15 in each calendar year, the
Trustee shall make a check of its holdings of such securities in any
of the
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above-mentioned capacities as of such May 15. lf the Company fails to
make payment in full of the principal of (or premium, if any) or
interest on any of the Securities when and as the same becomes due and
payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities
in any of the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date, notwithstanding
the foregoing provisions of this paragraph, all such securities so
held by the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the
Company, means every person who, within three years prior to the time
as of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not
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include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or
any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means an obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
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(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding.
(3) The term "amount," when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of units
if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as
to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; PROVIDED, HOWEVER, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and PROVIDED,
FURTHER, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
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There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000 subject to supervision or examination by federal, state
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or
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control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, subject to Section 514, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its prior claim, if any, provided for
in Section
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607. Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured,
of the Company within four months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart
and hold in a special account for the benefit of the Trustee individually,
the Holders of the Securities and the holders of other indenture
securities, as defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such four-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon
the date of such default; and
(2) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition
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thereof, or otherwise, after the beginning of such four-month period,
or an amount equal to the proceeds of any such property, if disposed
of, SUBJECT, HOWEVER, to the rights, if any, of the Company and its
other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide
sale of any such claim by the Trustee to a third Person, and
(iii) distributions made in cash, securities or other property in
respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable state law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so
held prior to the beginning of such four-month period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it
as security for any such claim, if such claim was created after
the beginning of such four-month period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months;
or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security
for such claim as provided in paragraph (B) or (C), as the case
may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such four-month period for property held as security
at the time of such substitution shall, to the extent of the fair value of
the property released, have the same status as the property released, and,
to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the
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purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of
other indenture securities realize, as a result of payments from such
special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable state law, the same
percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the
Company of the funds and property in such special account and before
crediting to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable state law, but after
crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law, whether such distribution is made
in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim.
The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among
the Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property
held in such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such four-month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such
four-month period, it shall be subject to the provisions of this Subsection
if and only if the following conditions exist:
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(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such four-month
period; and
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
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(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section,
and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf and subject to the
direction of the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof and to cancel
Securities pursuant to Section 309, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
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obligatory for all purposes as if authenticated by the Trustee hereunder. The
Trustee hereby initially appoints the Idaho First National Bank as an
Authenticating Agent in Boise, Idaho. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business 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, state or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent 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 case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail or cause to be mailed 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
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
While an appointment with respect to one or more series is in effect
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
-------------------------------------
, as Trustee
By..................................
AUTHORIZED OFFICER
OR
[______________________________], as
Authenticating Agent for the Trustee
By..................................
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) not later than 15 days after each Regular Record Date, in the case
of Securities that are interest bearing, and on each date determined
pursuant to Section 301 in the case of Securities that are not interest
bearing, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of the Securities as of such Regular
Record Date or as of such other date, as the case may be, and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if so acting.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series of
Securities contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders received by
the Trustee in its capacity as Security Registrar, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable
proof that each such applicant has owned a Security for a period of at
least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at
its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), and as
to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail, or cause to be mailed, to each Holder whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 702(a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses
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of mailing, unless within five days after such tender the Trustee shall
mail, or cause to be mailed, to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interest of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail, or cause to be mailed, copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the year
[____], the Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report dated as of
such date with respect to:
(1) its eligibility under Section 609 and its qualifications
under Section 608, or in lieu thereof, if to the best of its knowledge
it has continued to be eligible and qualified under said Sections, a
written statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it asserts or may assert a
claim or charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities Outstanding on the date of such
report;
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(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the possession
of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602.
(b) The Trustee shall transmit, or cause to be transmitted, by mail to
all Holders, as their names and addresses appear in the Security Register,
a brief report with respect to the character and amount of any advances
(and if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to Subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of
this instrument) for the reimbursement of which it asserts or may assert a
claim or charge, prior to that of the Securities, on property or funds held
or collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required
(but may elect) to report such advances if such advances remaining unpaid
at any time aggregate 10% or less of the principal amount of the Securities
Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall:
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(1 ) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form
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satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any, on) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger by the Company with or into any other
corporation, or any conveyance or transfer by the Company of its properties and
assets substantially as an entirety to any Person in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor corporation which shall theretofore become such in the manner
described in Section 801) shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add an additional Event of Default with respect to all
Securities or any series of Securities (and if such Event of Default is
applicable to less than all series of Securities, stating that such Event
of Default is applicable solely to such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
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(1) change the Stated Maturity of the principal of, or any installment
of the 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 change any Place of Payment where, or the coin
or currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section or Sections 513 or
1006, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that such supplemental indenture,
when executed and delivered by the Company, will constitute a valid and binding
obligation of the Company in accordance with its terms. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities of each series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series without charge to the
Holders.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
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 any such office or agency. If at any
time the Company shall fail to maintain any such required office
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or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Until changed by the Company in accordance with this Indenture, the Company
will maintain a Place of Payment at the Corporate Trust Office.
The Company may also from time to time designate one or more other offices
or agencies in or outside any Place of Payment where the Securities of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. The office of the Company in
Boise, Idaho, is hereby initially designated as such an office.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its failure so
to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of
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the Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, in The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement signed by the Chairman of the Board, the
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller or an Assistant Controller of the Company, stating, as to each signer
thereof, that:
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(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, the Company is
not in default in the fulfillment of any of its obligations under this
Indenture, or specifying each such default known to him and the nature and
status thereof.
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1002 to 1005, inclusive, with
respect to the Securities of any series, if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated in Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
In case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date 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
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this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restrictions.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected prior to the Redemption
Date by the Trustee or the Security Registrar with the approval of the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee or the Security Registrar shall 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
for Securities of that series.
The party selecting the Securities to be redeemed shall promptly notify the
parties to this Indenture in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 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 shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
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(4) that on the Redemption Date the Redemption Price and accrued
interest 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,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Any notice which is mailed in the manner herein provided shall be presumed
conclusively to have been duly given, whether or not the Holder receives such
notice; and failure duly to give such notice by mail, or any defect in such
notice, to the Holder of any Security designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to the opening of business on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date. In the event of any failure on
the part of the Company to deposit such money prior to any Redemption Date, the
Trustee shall not use any monies or U.S. Government Obligations deposited with
it pursuant to Sections 401 or 402 for the payment of any Redemption Price,
unless originally deposited for such purpose.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified plus accrued interest, and from and after
such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities-shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall 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 Regular
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Record Date or Special Record Date according to their terms and the provisions
of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Trustee and the Security Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, 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; PROVIDED, that if a Global Security is
so surrendered, such new Security so issued shall be a new Global Security in a
denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
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The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
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 shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date the Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and not less than 30 days before each sinking fund payment date cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness and that
no payment on account of principal of, premium, if any, or interest on the
Securities and no acquisition of, or payment on account of any sinking fund for,
the Securities may be made unless full payment of all amounts then due for
principal, premium, if any, and interest then due on all Senior Indebtedness by
reason of the maturity thereof (by lapse of time,
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acceleration or otherwise) has been made or duly provided for in cash or in a
manner satisfactory to the holders of such Senior Indebtedness.
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of the Company's assets in connection with any
dissolution, winding up, liquidation or reorganization of the Company, whether
voluntary or involuntary, in bankruptcy, insolvency or receivership proceedings
(each such event, if any, herein sometimes referred to as a "Proceeding"), or
upon an assignment for the benefit of creditors or otherwise: (i) all Senior
Indebtedness (including without limitation all interest accruing on or after the
filing of any petition in bankruptcy relating to the Company at the relevant
contractual rate, whether or not such claim for post-petition interest is
allowed in such Proceeding) must be paid in full in cash before the Holders of
the Securities are entitled to any payments or distributions of any kind or
character (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company (including
the Securities) subordinated to the payment of the Securities), and (ii) any
payment or distribution of the Company's assets of any kind or character,
whether in cash, securities or other property, which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of such Senior
Indebtedness (or their representative or trustee) in accordance with the
priorities then existing among such holders until all Senior Indebtedness shall
have been paid in full in cash before any payment or distribution is made to the
Holders of the Securities.
In the event that notwithstanding the subordination provisions set forth
herein, any payment or distribution of assets of any kind or character is made
on the Securities at a time when the respective payment is not permitted to be
made as a result of the subordination provisions described above and before all
Senior Indebtedness is paid in full in cash, the Trustee or the holders of the
Securities receiving such payment will be required to pay over such payment or
distribution to the holders of such Senior Indebtedness.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of reorganization or
readjustment which securities are subordinated in right of payment to all then
outstanding Senior Indebtedness to substantially the same extent as the
Securities are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in
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Article 8 shall not be deemed a Proceeding for the purposes of this Section if
the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by sale such properties and assets as an entirety, as
the case may be, shall, as a part of such consolidation, merger, or sale comply
with the conditions set forth in Article Eight.
SECTION 1303. PAYMENT BLOCKAGE UPON ACCELERATION OF SENIOR INDEBTEDNESS, ETC.
During the continuance of any event of default with respect to any Senior
Indebtedness pursuant to which the maturity thereof may be accelerated, upon the
occurrence of (a) receipt by the Trustee of written notice from the holders of a
majority of the outstanding principal amount of the Senior Indebtedness or their
representative, or (b) if such event of default results from the acceleration of
the Securities, the date of such acceleration, no such payment may be made by
the Company upon or in respect of the Securities for a period ("Payment Blockage
Period") commencing on the earlier of the date of receipt of such notice or the
date of such acceleration and ending 179 days thereafter (unless such Payment
Blockage Period shall be terminated by written notice to the Trustee from the
holders of a majority of the outstanding principal amount of such Senior
Indebtedness or their representative who delivered such notice); provided,
however, that notwithstanding anything herein to the contrary, in no event will
a Payment Blockage Period extend beyond 179 days from the date on which such
Payment Blockage Period was commenced; provided further, that not more than one
Payment Blockage Period may be commenced with respect to the Securities during
any period of 360 consecutive days. For all purposes of this Section, no event
of default which existed or was continuing on the date of the commencement of
any Payment Blockage Period with respect to the Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis for the
commencement of a second Payment Blockage Period by the holders of such Senior
Indebtedness or their representative whether or not within a period of 360
consecutive days unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or any Holder of the Securities prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known, as set forth in Section 1310, to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1302 would be applicable.
SECTION 1304. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
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In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on, or any other amounts owing
with respect to, any Senior Indebtedness when the same becomes due and payable
or in the event any judicial proceeding shall be pending with respect to any
such default, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment or distribution of any kind or
character, whether in cash, properties or Securities shall be made by the
Company on account of principal of (or premium, if any) or interest, if any, on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary.
The Company shall give prompt written notice to the Trustee of any default
in payment of principal of or interest on any Senior Indebtedness; provided that
no failure to give such a notice shall have any effect whatsoever on the
subordination provisions described herein.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Securities prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known as set forth in Section 1310, to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1302 would be applicable.
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1302 or under the conditions
described in Sections 1303 and 1304, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) except
with respect to the payment over provisions of this Article, the application by
the Trustee of any money deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest on the Securities
or the retention of such payment by the Holders, if, at the time of such
application by the Trustee, the Trustee did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, or the provision
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the
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payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company which by its express terms is subordinated to
Senior Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Company and the Holders of the Securities,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
their rights in relation to the holders of Senior Indebtedness, or (c) prevent
the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture including, without
limitation, filing and voting claims in any Proceeding, subject to the rights,
if any, under this Article of the holders of Senior Indebtedness to receive
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder.
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS.
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No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
SECTION 1310. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a person representing itself as a holder of Senior Indebtedness or
from any trustee, agent or representative therefor.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Article 6, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a Proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 6, shall not be liable to the holder of any
Senior Indebtedness if it shall pay over or deliver to Holders, the Company, or
any other Person, cash, property or securities to which any holder of Senior
Indebtedness shall be entitled to by virtue of this Article or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS.
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The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and, subject to the requirements of the Trust Indenture Act,
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intent and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BOISE CASCADE CORPORATION
By..................................................
TREASURER
[SEAL]
Attest:
............................................
ASSISTANT SECRETARY
Assistant Secretary
[NAME OF TRUSTEE]
By..................................................
VICE PRESIDENT
[SEAL]
Attest:
............................................
ASSISTANT SECRETARY
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STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
On the day of , [1999], before
me personally came to me known, who, being by me duly
sworn, did depose and say that he is , Treasurer of
Boise Cascade Corporation one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
................................................
NOTARY PUBLIC
STATE OF IDAHO
State of New York )
) ss.:
COUNTY OF NEW YORK )
On the day of , [1999],
before me personally came to me known, who, being by me duly
sworn, did depose and say that he is a Vice President of ,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
................................................
NOTARY PUBLIC
STATE OF NEW YORK
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EXHIBIT 4.13
CERTIFICATE OF TRUST OF BOISE CASCADE TRUST I
THIS Certificate of Trust of Boise Cascade Trust I (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware
corporation, and John W. Holleran, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. ss.3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Boise Cascade
Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By: /s/ DONALD G. MACKELCAN
-------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
/s/ JOHN W. HOLLERAN
----------------
Name: John W. Holleran
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EXHIBIT 4.14
CERTIFICATE OF TRUST OF BOISE CASCADE TRUST II
THIS Certificate of Trust of Boise Cascade Trust II (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware
corporation, and John W. Holleran, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. ss.3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Boise Cascade
Trust II.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By: /s/ JAMES P. LAWLER
-----------------------------------------
Name: James P. Lawler
Title: Vice President
/s/ JOHN W. HOLLERAN
--------------------
Name: John W. Holleran
EXHIBIT 4.15
CERTIFICATE OF TRUST OF BOISE CASCADE TRUST III
THIS Certificate of Trust of Boise Cascade Trust III (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware
corporation, and John W. Holleran, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. ss.3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Boise Cascade
Trust III.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By: /s/ JAMES P. LAWLER
---------------------------------------------
Name: James P. Lawler
Title: Vice President
/s/ JOHN W. HOLLERAN
--------------------
Name: John W. Holleran
EXHIBIT 4.16
AMENDED AND RESTATED DECLARATION OF TRUST
This Amended and Restated Declaration of Trust, dated as of March 22,
1999 (this "Declaration") amends and restates the Trust Agreement, dated as of
May 21, 1998, among (i) Boise Cascade Corporation, a Delaware corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware corporation, as trustee,
and (iii) John W. Holleran, an individual, as trustee (each of such trustees in
(ii) and (iii) a "Trustee" and collectively, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Boise Cascade Trust I" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby, make
and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 DEL. C. ss. 3801, eT Seq. (thE
"Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in the form of exhibit A attached hereto
with the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an
amended and restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the several Underwriters named therein, substantially in the
form included as an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above is required by
the rules and regulations of the Commission, an Exchange or state securities or
blue sky laws, to be executed on behalf of the Trust by one or more of the
Trustees, each of the Trustees, in its or his capacity as a Trustee of the
Trust, is hereby authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Wilmington Trust Company in its capacity as
a Trustee of the Trust shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the Exchange or state securities or blue sky
laws. In connection with the filings referred to above, the Depositor and John
W. Holleran, as a Trustee and not in his individual capacity, hereby constitutes
and appoints George J. Harad and Karen E. Gowland, and each of them, as its true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the 1933 Act Registration
Statement and the 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities or blue sky
laws, granting unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as the
Depositor or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration may be executed in one or more
counterparts.
6. The number of Trustees initially shall be two (2) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor.
7. This Declaration shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware.
2
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
BOISE CASCADE CORPORATION,
as Depositor
By: /S/ JOHN W. HOLLERAN
-------------------------
Name: John W. Holleran
Title: Senior Vice President and
General Counsel
WILMINGTON TRUST COMPANY,
as Trustee
By: /S/ JAMES P. LAWLER
-------------------------------
Name: James P. Lawler
Title: Vice President
/S/ JOHN W. HOLLERAN
--------------------------------------
John W. Holleran, as Trustee
EXHIBIT A
CERTIFICATE OF TRUST OF BOISE CASCADE TRUST I
THIS Certificate of Trust of Boise Cascade Trust I (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware
corporation, and John W. Holleran, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. ss.3801 eT SEq.).
1. NAME. The name of the business trust formed hereby is Boise
Cascade Trust I.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company, 1100
North Market Street, Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By: -----------------------
Name:
Title:
-----------------------------
Name: John W. Holleran
EXHIBIT 4.17
DECLARATION OF TRUST
This Declaration of Trust, dated as of March 22, 1999 (this
"Declaration"), among (i) Boise Cascade Corporation, a Delaware corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware corporation, as trustee,
and (iii) John W. Holleran, an individual, as trustee (each of such trustees in
(ii) and (iii) a "Trustee" and collectively, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Boise Cascade Trust II" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby, make
and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 DEL. C. ss. 3801, eT Seq. (the
"Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in the form of exhibit A attached hereto
with the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an
amended and restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the several Underwriters named therein, substantially in the
form included as an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above is required by
the rules and regulations of the Commission, an Exchange or state securities or
blue sky laws, to be executed on behalf of the Trust by one or more of the
Trustees, each of the Trustees, in its or his capacity as a Trustee of the
Trust, is hereby authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Wilmington Trust Company in its capacity as
a Trustee of the Trust shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the Exchange or state securities or blue sky
laws. In connection with the filings referred to above, the Depositor and John
W. Holleran, as a Trustee and not in his individual capacity, hereby constitutes
and appoints George J. Harad and Karen E. Gowland, and each of them, as its true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the 1933 Act Registration
Statement and the 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities or blue sky
laws, granting unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as the
Depositor or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration may be executed in one or more
counterparts.
6. The number of Trustees initially shall be two (2) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor.
7. This Declaration shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware.
2
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
BOISE CASCADE CORPORATION,
as Depositor
By: /S/ JOHN W. HOLLERAN
----------------------------------
Name: John W. Holleran
Title: Senior Vice President and
General Counsel
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ JAMES P. LAWLER
------------------------------
Name: James P. Lawler
Title: Vice President
/s/ JOHN W. HOLLERAN
---------------------------------
John W. Holleran, as Trustee
EXHIBIT A
CERTIFICATE OF TRUST OF BOISE CASCADE TRUST II
THIS Certificate of Trust of Boise Cascade Trust II (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware
corporation, and John W. Holleran, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. ss.3801 eT SEq.).
1. NAME. The name of the business trust formed hereby is Boise
Cascade Trust II.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company, 1100
North Market Street, Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By:
-----------------------------------
Name:
Title:
--------------------------
Name: John W. Holleran
EXHIBIT 4.18
DECLARATION OF TRUST
This Declaration of Trust, dated as of March 22, 1999 (this
"Declaration"), among (i) Boise Cascade Corporation, a Delaware corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware corporation, as trustee,
and (iii) John W. Holleran, an individual, as trustee (each of such trustees in
(ii) and (iii) a "Trustee" and collectively, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Boise Cascade Trust III" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby, make
and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 DEL. C. ss. 3801, eT Seq. (the
"Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in the form of exhibit A attached hereto
with the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an
amended and restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the several Underwriters named therein, substantially in the
form included as an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above is required by
the rules and regulations of the Commission, an Exchange or state securities or
blue sky laws, to be executed on behalf of the Trust by one or more of the
Trustees, each of the Trustees, in its or his capacity as a Trustee of the
Trust, is hereby authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Wilmington Trust Company in its capacity as
a Trustee of the Trust shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the Exchange or state securities or blue sky
laws. In connection with the filings referred to above, the Depositor and John
W. Holleran, as a Trustee and not in his individual capacity, hereby constitutes
and appoints George J. Harad and Karen E. Gowland, and each of them, as its true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the 1933 Act Registration
Statement and the 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities or blue sky
laws, granting unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as the
Depositor or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration may be executed in one or more
counterparts.
6. The number of Trustees initially shall be two (2) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor.
7. This Declaration shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware.
2
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
BOISE CASCADE CORPORATION,
as Depositor
By: /S/ JOHN W. HOLLERAN
--------------------------------
Name: John W. Holleran
Title: Senior Vice President and
General Counsel
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ JAMES P. LAWLER
-------------------------------
Name: James P. Lawler
Title: Vice President
/s/ JOHN W. HOLLERAN
---------------------------------
John W. Holleran, as Trustee
EXHIBIT A
CERTIFICATE OF TRUST OF BOISE CASCADE TRUST III
THIS Certificate of Trust of Boise Cascade Trust III (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware
corporation, and John W. Holleran, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. ss.3801 eT SEq.).
1. NAME. The name of the business trust formed hereby is Boise
Cascade Trust III.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company, 1100
North Market Street, Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By:
--------------------------
Name:
Title:
-----------------------------
Name: John W. Holleran
EXHIBIT 4.19
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED DECLARATION OF TRUST
AMONG
BOISE CASCADE CORPORATION
as Depositor,
[-------------------------------------]
as Property Trustee,
[-------------------------------------]
as Delaware Trustee,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of [_______ __], 1999
BOISE CASCADE TRUST [__]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINED TERMS............................................................................1
SECTION 1.1. Definitions..............................................................................1
ARTICLE 2 ESTABLISHMENT OF THE TRUST...............................................................9
SECTION 2.1. Name.....................................................................................9
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business..............................9
SECTION 2.3. Organizational Expenses..................................................................9
SECTION 2.4. Issuance of the Preferred Securities.....................................................9
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of the Common Securities...............9
SECTION 2.6. Declaration of Trust....................................................................10
SECTION 2.7. Authorization to Enter into Certain Transactions........................................10
SECTION 2.8. Assets of Trust.........................................................................14
SECTION 2.9. Title to Trust Property.................................................................14
ARTICLE 3 PAYMENT ACCOUNT
SECTION 3.1. Payment Account.........................................................................14
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions...........................................................................14
SECTION 4.2. Redemption..............................................................................15
SECTION 4.3. Conversion..............................................................................17
SECTION 4.4. Special Event Exchange or Redemption....................................................18
SECTION 4.5. Subordination of Common Securities......................................................20
SECTION 4.6. Payment Procedures......................................................................20
SECTION 4.7. Tax Returns and Reports.................................................................21
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust.............................................21
SECTION 4.9. Payments under Indenture................................................................21
ARTICLE 5 TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.......................................................................21
SECTION 5.2. The Trust Securities Certificates.......................................................21
SECTION 5.3. Delivery of Trust Securities Certificates...............................................21
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities...........................22
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates......................23
SECTION 5.6. Persons Deemed Securityholders..........................................................23
SECTION 5.7. Access to List of Securityholders' Names and Addresses..................................23
SECTION 5.8. Maintenance of Office or Agency.........................................................23
SECTION 5.9. Appointment of Paying Agent.............................................................23
SECTION 5.10. Ownership of Common Securities by Depositor.............................................24
SECTION 5.11. Global Securities; Non-Global Securities; Common Securities Certificate.................24
SECTION 5.12. Notices to Clearing Agency..............................................................25
SECTION 5.13. Definitive Preferred Securities Certificates............................................25
SECTION 5.14. Rights of Securityholders...............................................................26
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights............................................................26
SECTION 6.2. Notice of Meetings......................................................................28
SECTION 6.3. Meetings of Preferred Securityholders...................................................28
i
SECTION 6.4. Voting Rights...........................................................................28
SECTION 6.5. Proxies, Etc............................................................................28
SECTION 6.6. Securityholder Action by Written Consent................................................29
SECTION 6.7. Record Date for Voting and Other Purposes...............................................29
SECTION 6.8. Acts of Securityholders.................................................................29
SECTION 6.9. Inspection of Records...................................................................30
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware
Trustee.................................................................................30
SECTION 7.2. Representations and Warranties of Depositor.............................................32
ARTICLE 8 THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.....................................................32
SECTION 8.2. Notice of Defaults......................................................................34
SECTION 8.3. Certain Rights of Property Trustee......................................................36
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..................................38
SECTION 8.5. May Hold Securities.....................................................................38
SECTION 8.6. Compensation; Indemnity; Fees...........................................................38
SECTION 8.7. Property Trustee Required; Eligibility of Trustees......................................38
SECTION 8.8. Conflicting Interests...................................................................39
SECTION 8.9. Resignation and Removal; Appointment of Successor.......................................39
SECTION 8.10. Acceptance of Appointment by Successor..................................................41
SECTION 8.11. Merger, Conversion, Consolidation or Succession to Business.............................41
SECTION 8.12. Preferential Collection of Claims Against Depositor or Trust............................41
SECTION 8.13. Reports by Property Trustee.............................................................41
SECTION 8.14. Reports to the Property Trustee.........................................................42
SECTION 8.15. Evidence of Compliance with Conditions Precedent........................................42
SECTION 8.16. Number of Trustees......................................................................42
SECTION 8.17. Delegation of Power.....................................................................43
SECTION 8.18. Appointment of Administrative Trustees..................................................43
ARTICLE 9 TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date........................................................44
SECTION 9.2. Early Termination.......................................................................44
SECTION 9.3. Termination.............................................................................44
SECTION 9.4. Liquidation.............................................................................44
SECTION 9.5 Mergers, Consolidations, Amalgamations, Conversions or Replacements of the
Trust...................................................................................46
ARTICLE 10 MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.................................................46
SECTION 10.2. Amendment...............................................................................47
SECTION 10.3. Separability............................................................................48
SECTION 10.4. Governing Law...........................................................................48
SECTION 10.5. Payments Due on Non-Business Day........................................................48
SECTION 10.6. Successors..............................................................................48
SECTION 10.7. Headings................................................................................48
SECTION 10.8. Reports, Notices and Demands............................................................48
SECTION 10.9. Agreement Not to Petition...............................................................49
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act..................................49
SECTION 10.11. Acceptance of Terms of Declaration of Trust, Guarantee and Indenture....................50
SECTION 10.12. Counterparts............................................................................50
SECTION 10.13. Purchases of Trust Securities...........................................................50
ii
Certificate of Trust of Boise Cascade Trust [__] EXHIBIT A
Form of Certificate Depositary Agreement EXHIBIT B
Form of Common Securities of Boise Cascade Trust [__] EXHIBIT C
Form of Preferred Securities of Boise Cascade Trust [__] EXHIBIT D
Notice of Conversion EXHIBIT E
iii
BOISE CASCADE TRUST [__]*
Certain Sections of this Declaration of Trust
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE DECLARATION OF TRUST
ACT SECTION SECTION
Section 310 (a)(1) 8.7
(a)(2) 8.7
(a)(4) 2.7(a)(ii)
(b) 8.8
Section 311 (a) 8.12
(b) 8.12
Section 312 (a) 5.7
(b) 5.7
(c) 5.7
Section 313 (a) 8.13(a)
(c) 10.8
(d) 8.13(c)
(a)(4) 13(b)
(b) 8.13(b)
Section 314 (a) 8.14
(b Not Applicable
(c)(1) 8.15
(c)(2) 8.15
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.15
Section 315 (a) 8.1(a), 8.3(a)
(b) 8.2, 10.8
(c) 8.1(a)
(d) 8.1, 8.3
(e) Not Applicable
Section 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) 6.7
Section 317 (a)(1) Not Applicable
(b) 5.9
Section 318 (a) 10.10
- -------------
* Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Declaration of Trust.
iv
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of [______ __],
1999 among (i) Boise Cascade Corporation, a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii)
[________________________________], a national banking organization duly
organized and existing under the laws of the United States, as property trustee
(in such capacity, the "Property Trustee" and, in its personal capacity and not
in its capacity as Property Trustee, the "Bank"), (iii)
[________________________], a Delaware corporation, as Delaware trustee (in such
capacity, the "Delaware Trustee"), (iv) [_______________], an individual, and
[__________________], an individual, each of whose address is c/o Boise Cascade
Corporation, 1111 West Jefferson Street, P.O. Box 50, Boise, Idaho 83728-0001,
(each, an "Administrative Trustee" and, collectively, the "Administrative
Trustees" and, collectively with the Property Trustee and Delaware Trustee, the
"Trustees") and (v) the several Holders (as hereinafter defined). The Depositor
and the Trustees hereby agree as follows:
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have heretofore
duly declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Declaration of Trust, dated as of
[______ __], 199[9] (the "Original Declaration of Trust"), and by the execution
and filing by certain of the Trustees with the Secretary of State of the State
of Delaware of the Certificate of Trust, filed on [______ __], 199[9], attached
as Exhibit A, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust (as
defined herein) and investing the proceeds thereof in the Debentures (as defined
herein);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Declaration of Trust in its entirety as set forth herein to provide
for, among other things, (i) the issuance and sale of the Common Securities (as
defined herein) by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein) and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the
Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party and
for the benefit of the Holders (as defined herein) of the Preferred Securities,
hereby amends and restates the Original Declaration of Trust in its entirety and
agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Declaration of
Trust, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Declaration of Trust; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration of Trust as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Indenture) paid by the
Depositor on the Debentures.
"Additional Sums" means, with respect to the Trust Securities, the
amount of Additional Sums (as defined in the Indenture) paid by the Depositor on
the Debentures.
"Administrative Trustee" means each of Irving Littman and John W.
Holleran, each solely in his capacity as Administrative Trustee of the Trust
formed and continued hereunder and not in his individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor in interest in such capacity, or any successor administrative trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, provided, however that an Affiliate of the
Depositor shall not be deemed to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of the Clearing Agency for such security, to the extent
applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Declaration
of Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person 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 unstayed and in effect for a period
of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance
of any such action.
2
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means either the board of directors of the
Depositor or any committee of that board duly authorized to act hereunder.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the Corporate Trust
Office of the Property Trustee or the corporate trust office of the Debenture
Trustee is closed for business.
"Certificate Depositary Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates substantially in the form attached as Exhibit B, as the same may be
amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, that has been designated to act as depositary for the Preferred
Securities pursuant to the Certificate Depositary Agreement. The Depository
Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the first Time of Delivery (as defined in the
Underwriting Agreement).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount with respect to the assets of the
Trust of $[__] and having the rights provided therefor in this Declaration of
Trust, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Stock" means common stock, $2.50 par value per share, of the
Depositor.
"Conversion Agent" has the meaning specified in Section 4.3.
"Conversion Date" has the meaning specified in Section 4.3.
"Conversion Price" has the meaning specified in Section 4.3.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date
3
hereof is located at [________________________________________________________],
Attention: Corporate Trust Services.
"Current Market Price", with respect to Common Stock, means for any
day the last reported sale price, regular way, on such day, or, if no sale takes
place on such day, the average of the reported closing bid and asked prices on
such day, regular way, in either case as reported on the New York Stock Exchange
Consolidated Transactions Tape, or, if Common Stock is not listed or admitted to
trading on the New York Stock Exchange on such day, on the principal national
securities exchange on which Common Stock is listed or admitted to trading, if
Common Stock is listed on a national securities exchange, or the Nasdaq National
Market, or, if Common Stock is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which Common Stock may be
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of Common Stock in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose or, if not so available in such manner, as otherwise determined
in good faith by the Board of Directors.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to
be redeemed under the Indenture, the date fixed for redemption thereof under the
Indenture.
"Debenture Trustee" means [___________________________________], a
national banking association duly organized and existing under the laws of the
United States, as trustee under the Indenture.
"Debentures" means $__________ aggregate principal amount of the
Depositor's ___% convertible subordinated debentures issued pursuant to the
Indenture.
"Declaration of Trust" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including all exhibits hereto, including, for
all purposes of this Declaration of Trust any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Declaration of Trust and any such modification,
amendment or supplement, respectively.
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (a) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C., Section 3801, et. seq., as it may be amended from
time to time. "Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Declaration of Trust solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Direct Action" has the meaning specified in Section 6.8.
4
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means the occurrence of a Debenture Event of
Default, whatever the reason for such Debenture Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body.
"Exchange Notice" has the meaning specified in Section 4.4(b).
"Expiration Date" has the meaning specified in Section 9.1.
"Global Certificate" has the meaning specified in Section 5.2.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and [_____________________________], a national banking
association duly organized and existing, under the laws of the United States, as
guarantee trustee, contemporaneously with the execution and delivery of this
Declaration of Trust, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Securities Certificate
representing a Trust Security is registered, such Person being a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of [______ __], 199[9],
between the Depositor and the Debenture Trustee, as amended or supplemented from
time to time.
"Investment Company Event" means the receipt by the Property Trustee,
on behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having
a national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more than
an insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities under this Declaration of Trust.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $[__] per Trust Security.
"Liquidation Date" means each date on which Debentures or cash are to
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
5
"1940 Act" means the Investment Company Act of 1940, as amended.
"Notice of Conversion" means the notice given by a holder of Trust
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Trust Security for Debentures and to convert such Debentures into Common
Stock on behalf of such holder. Such notice is substantially in the form set
forth in Exhibit E.
"Officers' Certificate" means a certificate signed by (i) the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 8.15 shall
be the principal executive, financial or accounting officer of the Depositor.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Declaration of Trust shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant of condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and who may be an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel delivered with respect to compliance with a
condition or covenant provided for in this Declaration of Trust shall include:
(a) a statement that each individual signing the Opinion of Counsel
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each individual in rendering the Opinion of
Counsel;
(c) a statement that each individual has made such examination or
investigation as is necessary to enable such individual to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
"Optional Redemption Price" means, except as set forth below, with
respect to the Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions, if any,
to the date fixed for redemption if redeemed during the twelve-month period
commencing __________ in each of the following years:
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
% %
---- ----- ---- -----
---- ----- ---- -----
---- ----- ---- and thereafter 100.0%
---- -----
6
In the event of a redemption of Trust Securities upon the occurrence
of a Tax Event, Trust Securities shall be redeemed at the redemption price of
$[__] per Trust Security and all accumulated and unpaid Distributions, if any to
the date fixed for redemption.
"Original Declaration of Trust" has the meaning specified in the
recitals to this Declaration of Trust.
"Outstanding", when used with respect to Trust Securities, means, as
of the date of determination, all Trust Securities theretofore executed and
delivered under this Declaration of Trust, except:
(a) Trust Securities theretofore cancelled by the Securities Registrar
or delivered to the Securities Registrar for cancellation or tendered for
conversion;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent for the Holders of such Trust Securities; provided
that, if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Declaration of Trust; and
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Section 5.5;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Trust Securities that such Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time when all of the
Outstanding Trust Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Trust Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Securities Registrar the pledgee's right so to act
with respect to such Trust Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9.
"Payment Account" means a segregated non-interest bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Section 4.1.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
7
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount with respect to the assets of
the Trust of $[__] and having the rights provided therefor in this Declaration
of Trust, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust solely in its capacity as Property Trustee of the Trust heretofore formed
and continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $[__]
per Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums) to the date of redemption.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" has the same meaning as "Holder."
"Special Event" means a Tax Event or an Investment Company Event.
"Successor Property Trustee" has the meaning specified in Section 8.9.
"Successor Delaware Trustee" has the meaning specified in Section 8.9.
"Successor Securities" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Property Trustee, on behalf of
the Trust, of an Opinion of Counsel, rendered by a law firm having a national
tax and securities practice (which Opinion of Counsel shall not have been
rescinded by such law firm), to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Declaration of Trust, there is more than an
insubstantial risk in each case after the date thereof that (i) the Trust is, or
will be within 90 days after the date thereof, subject to United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Depositor on the Debentures is not, or will not be,
within 90 days after the date hereof, deductible, in whole or in part, for
United States federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date thereof, subject to more than de minimus amount of
other taxes, duties, assessments or other governmental charges.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page of this Declaration of Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939
8
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.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing to be held by the Property Trustee pursuant to the terms of this
Declaration of Trust for the benefit of the Securityholders.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates, the Global Certificates or the Certificated Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
[______ __], 199[9] among the Trust, the Depositor, and the Underwriter(s) named
therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name. The Trust created hereby shall be known as "Boise
Cascade Trust [__]", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is
[_______________________, _______________,] Wilmington, Delaware 19890,
Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is 1111 West Jefferson Street, P.O. Box 50, Boise, Idaho 83728-6161.
SECTION 2.3. Organizational Expenses. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. On [______ __],
199[9], the Depositor and an Administrative Trustee on behalf of the Trust
executed and delivered the Underwriting Agreement. On the Closing Date, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Purchasers named in the Underwriting Agreement
Preferred Securities Certificates, in an aggregate amount of __________
Preferred Securities having an aggregate Liquidation Amount of $__________,
against receipt of the aggregate purchase price of such Preferred Securities of
$__________, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee.
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of the
Common Securities. Contemporaneously with the execution and delivery of this
Declaration of Trust, the Administrative Trustees, on behalf of the Trust, shall
subscribe to and purchase from the Depositor the Debentures, registered in the
name of the Property Trustee (in its capacity as such) and having an aggregate
principal amount equal to $__________, and, in satisfaction of the purchase
price for such
9
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $__________. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Depositor the Common Securities Certificates registered in
the name of the Depositor, in an aggregate amount of __________ Common
Securities having an aggregate Liquidation Amount of $__________ against receipt
of the aggregate purchase price of such Common Securities from the Depositor in
the amount of $__________.
SECTION 2.6. Declaration of Trust. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Debentures, (b) to distribute the Trust's
income as provided in this Declaration of Trust and (c) to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions. (a) The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Declaration of Trust. Subject to the limitations set forth in Section 2.6
and paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the exclusive power, duty and
the authority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) to issue and sell the Trust Securities, provided, however,
that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and,
provided, further, that there shall be no interests in the Trust other
than the Trust Securities, and the issuance of Trust Securities shall
be limited to simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date, subject to the issuance of
Trust Securities pursuant to Section 5.5 and Successor Securities
pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Underwriting Agreement and the
Certificate Depositary Agreement and such other agreements as may be
necessary or incidental to the purposes and function of the Trust;
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended (the "Securities Act"),
and under state securities or blue sky laws, and the qualification of
this Declaration of Trust as a trust indenture under the Trust
Indenture Act;
10
(D) to assist in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing (only to the extent that such listing or registration
is requested by the Depositor);
(E) to appoint a Paying Agent, a Securities Registrar and an
authenticating agent in accordance with this Declaration of Trust;
(F) to the extent provided in this Declaration of Trust, to wind
up the affairs of and liquidate the Trust and prepare, execute and
file the certificate of cancellation with the Secretary of State of
the State of Delaware;
(G) unless otherwise requested of the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any other
Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Declaration of
Trust; and
(H) to take any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Declaration of Trust including, but
not limited to:
(x) causing the Trust not to be deemed to be an "investment
company" required to be registered under the 1940 Act;
(y) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(z) cooperating with the Depositor to ensure that the
Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes;
provided that such action does not adversely affect in any material respect the
interests of Securityholders or the remaining Trustees except as otherwise
provided in Section 10.2(a).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Debentures;
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(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to
the Securityholders in respect of the Trust Securities in accordance
with the Declaration of Trust;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures following an occurrence of an Event of
Default;
(F) the sending of notices of default, other notices and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Declaration of Trust;
(G) the distribution of the Trust Property in accordance with the
terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Declaration of Trust and protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder);
(J) subject to this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section 2.7(a)(i); and
(K) to act as Paying Agent and/or Securities Registrar to the
extent appointed as such hereunder.
(b) So long as this Declaration of Trust remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trust shall not, and the Trustees
shall not and shall cause the Trust not to (i) invest any proceeds received
by the Trust from holding the Debentures (rather, the Trustees shall
distribute all such proceeds to the Securityholders pursuant to the terms
of this Declaration of Trust and the Trust Securities), acquire any
investments or engage in any activities not authorized by this Declaration
of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii)
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv) make
any loans or incur any indebtedness for borrowed money or issue any other
debt, (v) take or consent to any action that would result in the placement
of a Lien on any of the Trust Property, (vi) possess any power or otherwise
act in such a way as to vary the Trust assets or the terms of the Trust
Securities in any way whatsoever except as permitted by the terms of this
Declaration of Trust, or (vii) issue any securities or other evidences of
beneficial ownership of, or
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beneficial interest in, the Trust other than the Trust Securities. The
Administrative Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following actions
(and any actions taken by the Depositor in furtherance of the following
prior to the date of this Declaration of Trust are hereby ratified and
confirmed in all respects):
(i) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Underwriting Agreement and the
Certificate Depositary Agreement and such other agreements as may be
necessary or incidental to the purposes and functions of the Trust;
(ii) to file with the Commission and to execute on behalf of the
Trust a registration statement on the appropriate form in relation to
the Preferred Securities, including any amendments thereto;
(iii) to determine the States and foreign jurisdictions in which
to take appropriate action to qualify or register for sale all or part
of the Preferred Securities and to do any and all such acts, other
than actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on behalf of the Trust,
and prepare for execution and filing any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of
any such States and foreign jurisdictions;
(iv) to the extent necessary, to prepare for filing by the Trust
with the Commission and to execute on behalf of the Trust a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto and
to assist in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor; and
(v) any other actions necessary or incidental to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the 1940 Act,
or taxed as a corporation for United States federal income tax purposes and
so that the Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or
this Declaration of Trust, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely
affect in any material respect the interests of the Holders of the
Preferred Securities except as otherwise provided in Section 10.2(a).
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SECTION 2.8. Assets of Trust. The assets of the Trust shall consist of
only the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Declaration
of Trust. Each Securityholder shall not have legal title to any part of the
assets of the Trust, but shall have an undivided beneficial interest in the
assets of the Trust.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits in
and withdrawals from the Payment Account in accordance with this
Declaration of Trust. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee
in the Payment Account for the exclusive benefit of the Securityholders and
for distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and
shall accrue from the date of original issuance, or the most recent
Distribution Date (as defined herein) and, except in the event that the
Depositor exercises its right to defer the payment of interest on the
Debentures pursuant to the Indenture, shall be payable quarterly in arrears
on __________, __________, __________ and __________ of each year,
commencing on __________, 199[9] (which dates correspond to the interest
payment dates on the Debentures), when, as and if available for payment by
the Property Trustee, as further described in paragraph (c) of this Section
4.1. If any date on which Distributions are otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distributions
shall be made on the next succeeding day which is a Business Day (and no
interest shall accrue for the period from and after such date until the
next succeeding Business Day) with the same force and effect as if made on
such date (each date on which Distributions are payable in accordance with
this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and the Distributions on the Trust Securities shall be
payable at a rate of ____% per annum of the Liquidation Amount of the Trust
Securities, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. The amount of Distributions payable for
any period shall be computed on the basis of a 360-day year of twelve
30-day months. For periods less than a full quarter, Distributions shall
reflect
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interest on Debentures computed on the basis of the actual number of
elapsed days for any period based on a 360-day year of twelve 30-day
months. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record
date, which shall be the date which is the fifteenth day (whether or not a
Business Day) next preceding such Distribution Date.
SECTION 4.2. Redemption.
(a) Upon an optional redemption (as set forth in the Indenture) of
Debentures, the proceeds from such redemption shall be applied to redeem
Trust Securities having an aggregate Liquidation Amount equal to the
aggregate principal amount of the Debentures so redeemed by the Depositor,
including pursuant to Section 4.4, at the Optional Redemption Price, and
upon a mandatory redemption (as set forth in the Indenture) of Debentures,
the proceeds from such redemption shall be applied to redeem Trust
Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of the Debentures so redeemed by the Depositor, at the
Redemption Price.
(b) Notice of redemption (which notice will be irrevocable) shall be
given by the Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption Date to the
Depositor and each Holder of Trust Securities to be redeemed, at such
Holder's address as it appears in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as
the case may be;
(iii) the CUSIP number;
(iv) if less than all of the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed;
(v) (A) that a Holder of Preferred Securities who desires to
convert such Preferred Securities called for redemption must satisfy
the requirements for conversion contained in Section 4.3 below and
(B) the Conversion Price;
(vi) that on the Redemption Date the Redemption Price or the
Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
15
(vii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the Optional
Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price or the Optional Redemption Price, as the
case may be, with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the
Redemption Price or the Optional Redemption Price, as the case may be,
shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment
of such Redemption Price or the Optional Redemption Price, as the case may
be.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so
long as and to the extent the Preferred Securities are in book-entry-only
form, irrevocably deposit with the Clearing Agency for the Preferred
Securities funds sufficient to pay the applicable Redemption Price. If the
Preferred Securities are no longer in book-entry only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the
Paying Agent funds sufficient to pay the applicable Redemption Price or
Optional Redemption Price, as the case may be, on such Preferred Securities
held in certificated form and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price or the Optional
Redemption Price, as the case may be, to the Holders thereof upon surrender
of their Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates.
If notice of redemption shall have been given and funds deposited as
required, then, upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption
Price or the Optional Redemption Price, as the case may be, but without
interest, and such Trust Securities will cease to be Outstanding. In the
event that any date on which any Redemption Price or the Optional
Redemption Price, as the case may be, is payable is not a Business Day,
then payment of the Redemption Price or the Optional Redemption Price, as
the case may be, payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), with the same force and effect as if made on
such date.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated on a pro rata basis
(based on Liquidation Amounts) among the Common Securities and the
Preferred Securities that are to be redeemed. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by lot or by such other
method as the Property Trustee shall deem customary and appropriate and
which may provide for the selection for redemption of portions (equal to
$[__] or an integral multiple of $[__] in excess thereof) of the
Liquidation Amount of the Preferred Securities. The Property Trustee shall
promptly notify the Securities Registrar and the Conversion Agent in
writing of the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed; it being understood that, in the
case of Preferred Securities registered in the
16
name of and held of record by the Clearing Agency (or any successor) or any
nominee, the distribution of the proceeds of such redemption will be made
in accordance with the procedures of the Clearing Agency or its nominee.
For all purposes of this Declaration of Trust, unless the context otherwise
requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed. In the event of
any redemption, the Trust shall not be required to (i) issue, register the
transfer of or exchange any Preferred Security during a period beginning at
the opening of business 15 days before any selection for redemption of
Preferred Securities and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been
given to all holders of Preferred Securities to be so redeemed or (ii)
register the transfer of or exchange on any Preferred Securities so
selected for redemption, in whole or in part, except for the unredeemed
portion of any Preferred Securities being redeemed in part.
[SECTION 4.3. Conversion. The Holders of Trust Securities, subject to
the limitations set forth in this Section, shall have the right at any time, at
their option, to cause the Conversion Agent to convert Trust Securities, on
behalf of the converting Holders, into shares of Common Stock in the manner
described herein on and subject to the following terms and conditions:
(i) The Trust Securities will be convertible into fully paid and
nonassessable shares of Common Stock pursuant to the Holder's direction to
the Conversion Agent to exchange such Trust Securities for a portion of the
Debentures in a principal amount equal to the Liquidation Amount of such
Trust Securities, and immediately convert such amount of Debentures into
fully paid and nonassessable shares of Common Stock at an initial rate of
______ shares of Common Stock for each Trust Security (which is equivalent
to a conversion price of $______ per share of Common Stock), subject to the
terms and certain adjustments set forth in the Indenture (as so adjusted,
"Conversion Price"). In case Trust Securities or a portion thereof are
called for redemption, such conversion right in respect of the Trust
Securities or portion thereof so called shall expire at the close of
business on the Business Day immediately preceding the Redemption Date,
unless the Property Trustee fails to irrevocably deposit funds sufficient
to pay the Redemption Price or Optional Redemption Price, as the case may
be.
(ii) In order to convert Trust Securities into Common Stock, the
Holder of such Trust Securities shall submit to the Conversion Agent an
irrevocable Notice of Conversion to convert Trust Securities on behalf of
such Holder, together, if the Trust Securities are in certificated form,
with such certificates. The Notice of Conversion shall (x) set forth the
number of Trust Securities to be converted and the name or names, if other
than the Holder, in which the shares of Common Stock should be issued and
(y) direct the Conversion Agent (a) to exchange such Trust Securities for a
portion of the Debentures held by the Property Trustee (at the rate of
exchange specified in the preceding paragraph) and (b) to immediately
convert such Debentures, on behalf of such Holder, into Common Stock (at
the conversion rate specified in the preceding paragraph). The Conversion
Agent shall notify the Property Trustee of the Holder's election to
exchange Trust Securities for a portion of the Debentures held by the
Property Trustee and the Property Trustee shall, upon receipt of such
notice, deliver to the Conversion Agent the appropriate principal amount of
Debentures for exchange in accordance with this Section. The Conversion
Agent shall thereupon notify the Depositor of the Holder's election to
convert such Debentures into shares of Common Stock. Holders of Trust
Securities at the close of business on a Distribution payment record date
will be entitled to receive the Distribution paid on such Trust Securities
on the corresponding Distribution Date notwithstanding the conversion of
such Trust Securities following such record date but prior to such
Distribution Date. Except as provided above, neither the Trust nor the
17
Depositor will make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and unpaid
Distributions whether or not in arrears accrued on the Trust Securities
surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Common Stock issued upon such conversion. Trust
Securities shall be deemed to have been converted immediately prior to the
close of business on the day on which an irrevocable Notice of Conversion
relating to such Trust Securities is received by the Conversion Agent in
accordance with the foregoing provision (the "Conversion Date"). The Person
or Persons entitled to receive the Common Stock issuable upon conversion of
the Debentures shall be treated for all purposes as the record holder or
holders of such Common Stock on the date of conversion. As promptly as
practicable on or after the Conversion Date, the Depositor shall issue and
deliver, or shall cause to be issued and delivered, at the office of the
Conversion Agent a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same, unless otherwise directed by the
Holder in the notice of conversion, and the Conversion Agent shall
distribute such certificate or certificates and cash to such Person or
Persons.
(iii) Each Holder of a Trust Security by its acceptance thereof
initially appoints [_____________________________] not in its individual
capacity but solely as conversion agent (the "Conversion Agent") for the
purpose of effecting the conversion of Trust Securities in accordance with
this Section. In effecting the conversion and transactions described in
this Section, the Conversion Agent shall be acting as agent of the Holders
of Trust Securities directing it to effect such conversion transactions.
The Conversion Agent is hereby authorized to (i) exchange Trust Securities
from time to time for Debentures held by the Trust in connection with the
conversion of such Trust Securities in accordance with this Section and
(ii) convert all or a portion of the Debentures into Common Stock and
thereupon to deliver such shares of Common Stock in accordance with the
provisions of this Section and to deliver to the Property Trustee any new
Debenture or Debentures for any resulting unconverted principal amount
delivered to the Conversion Agent by the Debenture Trustee.
(iv) No fractional shares of Common Stock will be issued as a result
of conversion, but, in lieu thereof, such fractional interest will be paid
in cash by the Depositor to the Conversion Agent in an amount equal to the
Current Market Price of the fractional share of the Common Stock, and the
Conversion Agent will in turn make such payment to the Holder or Holders of
Trust Securities so converted.
(v) Nothing in this Section 4.3 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as
set forth in this Agreement or otherwise required of the Property Trustee
or by law or the Trust to pay any amounts on account of such withholdings.]
SECTION 4.4. Special Event Exchange or Redemption.
(a) If a Special Event shall occur and be continuing, the Property
Trustee shall direct the Conversion Agent to exchange all Outstanding Trust
Securities for Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Trust Securities to be exchanged and with accrued
interest in an amount equal to any unpaid Distribution (including any
Additional Amounts) on the Trust Securities; provided, however, that, in
the case of a Tax Event, the Depositor shall have the right to (i) direct
that less than all, or none, as appropriate, of the Trust Securities be so
exchanged if and for so long as the Depositor shall have elected to pay any
Additional Sums (as defined in the Indenture) such that the amount received
by Holders of Trust Securities not so
18
exchanged in respect of Distributions and other distributions are not
reduced as a result of such Tax Event, and shall not have revoked any such
election or failed to make such payments or (ii) cause the Trust Securities
to be redeemed in the manner set forth below. If a Tax Event shall occur or
be continuing, the Depositor shall have the right, upon not less than 30
nor more than 60 days' notice, to redeem the Debentures, in whole or in
part, for cash upon the later of (i) 90 days following the occurrence of
such Tax Event or (ii) __________ ___, 200[_]. Promptly following such
redemption, Trust Securities with an aggregate Liquidation Amount equal to
the aggregate principal amount of the Debentures so redeemed will be
redeemed by the Trust at 100% of the principal amount thereof together with
accrued and unpaid Distributions to the redemption date, on a pro rata
basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an "Exchange
Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to
the Depositor and to each record Holder of Trust Securities to be exchanged
not fewer than 30 nor more than 60 days prior to the date fixed for
exchange thereof. For purposes of the calculation of the date of exchange
and the dates on which notices are given pursuant to this paragraph (b), an
Exchange Notice shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to each Holder. Each Exchange
Notice shall be addressed to each Holder of Trust Securities at the address
of such Holder appearing in the books and records of the Trust. Each
Exchange Notice shall state: (A) the exchange date; (B) the aggregate
Liquidation Amount and any unpaid Distributions (including any Additional
Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debentures to be exchanged
therefor; (C) that on the exchange date the Trust Securities to be so
exchanged shall be exchanged for Debentures and that Distributions on the
Trust Securities so exchanged will cease to accumulate on and after said
date; and (D) the identity of the Conversion Agent, if any, and the place
or places where each Trust Certificate to be exchanged is to be surrendered
in exchange for Debentures. No defect in the Exchange Notice or in the
mailing thereof with respect to any Trust Security shall affect the
validity of the exchange proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred
Securities are to be exchanged, then, on the exchange date, (i) if all of
the Outstanding Preferred Securities are represented by Definitive
Preferred Securities Certificates, the particular Preferred Securities to
be exchanged will be selected by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption or exchange on a
pro rata basis, (ii) if all of the Outstanding Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Property
Trustee shall provide for the selection for exchange of a portion of the
Global Certificate representing the Book-Entry Preferred Securities
Certificates on a pro rata basis and (iii) if Outstanding Trust Securities
are represented by both Definitive Preferred Securities Certificates and
Book-Entry Preferred Securities Certificates, the Property Trustee shall
select the portion of the Global Certificate representing the Book-Entry
Preferred Securities Certificates and the particular Outstanding Preferred
Securities represented by Definitive Preferred Securities Certificates to
be exchanged on a pro rata basis. In the case of clause (ii) or (iii)
above, the particular Book-Entry Preferred Securities Certificates to be
exchanged shall be selected in accordance with the applicable rules and
procedures for the Clearing Agency in whose name, or whose nominee's name,
such global certificate is then held. Any Preferred Securities Certificate
that is to be exchanged only in part shall be surrendered with due
endorsement or by a written instrument of transfer fully executed by the
Holder thereof (or its attorney duly authorized in writing) and the Trust
shall prepare and deliver to such Holder, without service charge, a new
Preferred Securities Certificate or
19
Certificates in aggregate stated Liquidation Amount equal to, and in
exchange for, the unredeemed portion of the Preferred Securities
Certificate so surrendered. The Common Securities shall be exchanged in a
similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on the
date fixed for any such exchange, (i) if the Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Clearing
Agency of its nominee, as the record Holder of such Preferred Securities,
will exchange through the Conversion Agent the Global Certificate
representing the Preferred Securities to be exchanged for a registered
Global Certificate or certificates representing the Debentures to be
delivered upon such exchange, (ii) if the Preferred Securities are
represented by Definitive Preferred Securities Certificates, the
certificates representing the Preferred Securities to be so exchanged will
be deemed to represent Debentures having a principal amount equal to the
aggregate stated Liquidation Amount of such Preferred Securities until such
certificates are presented to the Conversion Agent for exchange for
definitive certificates representing Debentures and (iii) all rights of the
Holders of the Preferred Securities so exchanged will cease, except for the
right of such Holders to receive Debentures. The Common Securities shall be
exchanged in a similar manner.
(e) Each Holder, by becoming a party to this Agreement pursuant to
Section 10.11 of this Agreement, will be deemed to have agreed to be bound
by these exchange provisions in regard to the exchange of Trust Securities
for Debentures pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities, as
set forth in this Agreement or under applicable law or otherwise require
the Property Trustee or the Trust to pay any amounts on account of such
withholdings.
(g) An exchange of Trust Securities for Debentures pursuant to this
Section 4.4 shall be made to Holders of Trust Securities as they appear on
the Securities Register for Trust Securities on the relevant record date,
which shall be the date which is the fifteenth day (whether or not a
Business Day) preceding the exchange date.
SECTION 4.5. Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date or Redemption Date an Event of Default shall have
occurred and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or the Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or other acquisition
of Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or the Redemption Price of, Preferred Securities then due and payable.
SECTION 4.6. Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, in accordance with
the Certificate Depositary Agreement on the applicable Distribution Dates.
Payments in respect of the Common
20
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Holder of the Common Securities.
SECTION 4.7. Tax Returns and Reports. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense, and file
(or cause to be filed) all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) Form 1041 or the appropriate Internal Revenue
Service form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Security holder a Form 1099 or the appropriate Internal Revenue Service
form required to be furnished to such Securityholder or the information required
to be provided on such form. The Administrative Trustees shall provide (or cause
to be provided) the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing. The
Administrative Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust. Upon receipt
under the Debentures of Additional Sums, the Property Trustee, upon receipt of
written notice from the Depositor or the Administrative Trustees, shall promptly
pay from such Additional Sums any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes), as indicated in such notice,
imposed on the Trust by the United States or any other taxing authority.
SECTION 4.9. Payments under Indenture. Any amount payable hereunder to
any Holder of Preferred Securities (and any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has
directly received pursuant to Section 5.8 of the Indenture in accordance with
the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the formation of the Trust and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.2. The Trust Securities Certificates. The Preferred
Securities Certificates shall be issued in minimum denominations of $[__]
Liquidation Amount and integral multiples of $[__] in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $[__]
Liquidation Amount and integral multiples thereof. The consideration received by
the Trust for the issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust. Initially the Preferred Securities will be represented by a certificate
registered in the Securities Register in the name of a Clearing Agency or a
nominee thereof, in global form (the "Global Certificate"). The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and the Preferred Securities
Certificates shall be authenticated by the Property Trustee. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefit of this
Declaration of Trust, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
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SECTION 5.3. Delivery of Trust Securities Certificates. On the Closing
Date, the Administrative Trustees shall cause Trust Securities Certificates, in
an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be
executed on behalf of the Trust and delivered to or upon the written order of
the Depositor, signed by its Chairman of the Board, any Vice Chairman, its
President, or any Vice President, Treasurer or Assistant Treasurer or Controller
without further corporate action by the Depositor, in authorized denominations.
A Common Securities Certificate shall not be valid until executed by
at least one Administrative Trustee. A Preferred Securities Certificate shall
not be valid until authenticated by the manual signature of an authorized
signatory of the Property Trustee. The signature shall be conclusive evidence
that the Preferred Securities Certificate has been authenticated under this
Declaration of Trust. Upon a written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate the Preferred
Securities Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Administrative Trustees to authenticate Preferred Securities Certificates.
An authenticating agent may authenticate Preferred Securities Certificates
whenever the Property Trustee may do so. Each reference in this Declaration of
Trust to authentication by the Property Trustee includes authentication by such
agent. An authenticating agent has the same rights as the Property Trustee to
deal with the Depositor or an Affiliate with respect to the authentication of
Preferred Securities.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities. The Securities Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.8, a Securities Register in
which, subject to such reasonable regulations as it may prescribe, the
Securities Registrar shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.10 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Property
Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Security
at an office or agency of the Depositor designated pursuant to Section 5.8 for
such purpose, the Depositor shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, and subject to the other provisions of
this Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Amount, upon
surrender of the Preferred Securities to be exchanged at any such office or
agency. Whenever any Preferred Securities are so surrendered for exchange, the
Depositor shall execute, and the Property Trustee shall authenticate and
deliver, the Preferred Securities which the Holder making the exchange is
entitled to receive.
All Preferred Securities issued upon any registration of transfer or
exchange of Preferred Securities shall be the valid obligations of the Trust,
evidencing the same rights, and entitled to the same benefits under this
Declaration of Trust, as the Securities surrendered upon such registration of
transfer or exchange.
Every Preferred Security presented or surrendered for registration of
transfer or for exchange shall (if so requested by the Depositor or the
Securities Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor and the Securities
Registrar duly executed, by the Holder thereof or such Holder's attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any
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tax or governmental charge that may be imposed in connection with any transfer
or exchange of Preferred Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for authentication, where applicable, and
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Securities Certificate, a new Trust Securities Certificate of like
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Securities Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicative Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders. The Property Trustee and
the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Property
Trustee nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
The Administrative Trustees or the Depositor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Securities Registrar with
respect to the Trust Securities under the Declaration of Trust) a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Securityholders as of the most recent record date (a) to the Property
Trustee, quarterly at least 5 Business Days before each Distribution Date, and
(b) to the Property Trustee, as promptly as practicable after receipt by the
Depositor of a request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Declaration of Trust,
in each case to the extent such information is in the possession or control of
the Administrative Trustees or the Depositor and is not identical to a
previously supplied list or has not otherwise been received by the Property
Trustee in its capacity as Securities Registrar. The rights of Securityholders
to communicate with other Securityholders with respect to their rights under
this Declaration of Trust or under the Trust Securities, and the corresponding
rights of the Trustee shall be as provided in the Trust Indenture Act, except to
the extent Section 3819 of the Delaware Business Trust Act would require greater
access to such information, in which case the latter shall apply. Each Holder,
by receiving and holding a Trust Securities Certificate, and each Owner shall be
deemed to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency. The Securities Registrar
shall maintain in The City of New York an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Securities Registrar initially designates [_____________________,
_______________, _______________], Attention: Corporate Trust Services, as its
principal corporate trust office for such purposes. The Securities Registrar
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
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SECTION 5.9. Appointment of Paying Agent. In the event that the
Preferred Securities are not in book-entry form only, the Trust shall maintain
in the Borough of Manhattan, The City of New York, an office or agency (the
"Paying Agent") where the Preferred Securities may be presented for payment. The
Paying Agent shall make Distributions to Securityholders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Declaration of Trust in any material respect. The Paying
Agent shall initially be the Property Trustee, and any co-paying agent chosen by
the Property Trustee and acceptable to the Administrative Trustees and the
Depositor in their sole discretion. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Depositor. In the event that the Property Trustee shall no
longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company). Each
successor Paying Agent or any additional Paying Agent shall agree with the
Trustees that, as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to each Securityholder. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Property
Trustee also in its role as Paying Agent, for so long as the Property Trustee
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor. On the
Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law, any
attempted transfer of the Common Securities shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate.
(a) Each Global Certificate authenticated under this Declaration of
Trust shall be registered in the name of the Clearing Agency designated by
the Depositor for such Global Certificate or a nominee thereof and
delivered to such Clearing Agency or a nominee thereof or custodian
therefor, and each such Global Certificate shall constitute a Preferred
Security for all purposes of this Declaration of Trust.
(b) If a Global Certificate is to be exchanged for Certificated
Preferred Securities or cancelled in whole, it shall be surrendered by or
on behalf of the Clearing Agency, its nominee or custodian to the Property
Trustee, as Securities Registrar, for exchange or cancellation as provided
in this Article 5. If any Global Certificate is to be exchanged for
Certificated Preferred Securities or cancelled in part, or if another
Preferred Security is to be exchanged in whole or in part for a beneficial
interest in any Global Certificate, in each case, as provided in Section
5.4, then either (i) such Global Certificate shall be so surrendered for
exchange or cancellation as provided in this Article 5 or (ii) the
Liquidation Amount thereof shall be reduced or increased by an amount equal
to the portion thereof to be so exchanged or cancelled, or equal to the
principal amount of such Certificated Preferred Security to be so exchanged
for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Property Trustee, as
Securities Registrar, whereupon the Property Trustee, in
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accordance with the Applicable Procedures, shall instruct the Clearing
Agency or its authorized representative to make a corresponding adjustment
to its records. Upon any such surrender or adjustment of a Global
Certificate, the Property Trustee shall, subject to Section 5.4 and as
otherwise provided in this Article 5, authenticate and deliver any
Preferred Securities issuable in exchange for such Global Certificate (or
any portion thereof) to or upon the order of, and registered in such names
as may be directed by, the Clearing Agency or its authorized
representative.
Upon the request of the Property Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph, the
Depositor shall cause as promptly as practicable to be made available to
the Property Trustee a reasonable supply of Preferred Securities that are
not in the form of Global Certificates. The Property Trustee shall be
entitled to rely upon any order, direction or request of the Clearing
Agency or its authorized representative which is given or made pursuant to
this Article 5 if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(c) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Certificate or any portion thereof, whether pursuant to this Article 5 or
otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Certificate, unless such Preferred Security is registered in
the name of a Person other than the Clearing Agency for such Global
Certificate or a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of a
Global Certificate, shall be the holder of such Global Certificate for all
purposes under the Declaration of Trust and the Preferred Securities, and
owners of beneficial interests in a Global Certificate shall hold such
interests pursuant to the Applicable Procedures. Accordingly, any such
Owner's beneficial interest in a Global Certificate will be shown only on,
and the transfer of such interest shall be effected only through, records
maintained by the Clearing Agency or its nominee or its participants and
such owners of beneficial interests in a Global Certificate will not be
considered the owners or holders of such Global Certificate for any purpose
of this Declaration of Trust or the Preferred Securities.
(e) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.12. Notices to Clearing Agency. To the extent that a notice
or other communication to the Owners is required under this Declaration of
Trust, unless and until Definitive Preferred Securities Certificates shall have
been issued to Owners pursuant to Section 5.13, the Administrative Trustees and
the Property Trustee shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to provide notices directly to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
Notwithstanding any other provision in this Declaration of Trust, no Global
Certificate may be exchanged in whole or in part for Preferred Securities
registered, and no transfer of a Global Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Global Certificate or a nominee thereof unless (i) such Clearing Agency (A) has
notified the Depositor that it is unwilling or unable to continue as Clearing
Agency for such Global Certificate or (B) has ceased to be a clearing agency
registered as such under the Securities Exchange Act of 1934, as amended, and in
either case the Trust and the Depositor thereupon fails to appoint a successor
Clearing Agency, (ii) the Depositor, at
25
its option, notifies the Property Trustee in writing that it elects to cause the
issuance of the Preferred Securities in certificated form or (iii) there shall
have occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default. In all cases,
Certificated Preferred Securities delivered in exchange for any Global
Certificate or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by or on behalf of the Clearing
Agency (in accordance with its customary procedures).
SECTION 5.14. Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.9, and the Securityholders shall not have any right
or title therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Declaration of
Trust. The Trust Securities shall have no preemptive or similar rights and, when
issued and delivered to Securityholders against payment of the purchase price
therefor, will be fully paid and nonassessable by the Trust. The Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.9 and 10.2 and in
the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control
the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed
so as to constitute the Securityholders from time to time as partners or
members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default with respect
to the Preferred Securities has occurred and been subsequently cured,
waived or otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof
shall apply. During (x) the period commencing on the date of the occurrence
of an Event of Default with respect to the Preferred Securities and ending
on the date when such Event of Default is cured, waived or otherwise
eliminated, or (y) any period not described in either the preceding
sentence or the preceding clause (x), the provisions of Section 6.1(b)(i)
shall apply.
(i) The holders of a majority in aggregate Liquidation Amount of
the Preferred Securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee or to exercise any trust or power conferred
upon the Property Trustee under the Declaration of Trust, including
the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Debentures but excluding the right
to direct the Property Trustee to consent to an amendment,
modification or termination of the Indenture (which shall be as
provided below). So long as any Debentures are held by the Property
Trustee, the Administrative Trustees and the Property Trustee shall
not (A) direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture
26
Trustee with respect to such Debentures, (B) waive any past default
which is waivable under Section 5.13 of the Indenture, (C) exercise
any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of a majority in
aggregate Liquidation Amount of all Outstanding Preferred Securities
(except in the case of clause (D), which consent, in the event that no
Event of Default shall occur and be continuing, shall be of the
Holders of all Trust Securities, voting together as a single class);
provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior
written consent of each Holder of Preferred Securities. The
Administrative Trustees and the Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of
the Preferred Securities, except by a subsequent vote of the Holders
of the Preferred Securities. The Property Trustee shall notify all
Holders of record of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the
Preferred Securities, prior to taking any of the foregoing actions,
the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation or
partnership for United States federal income tax purposes on account
of such action.
(ii) Subject to Section 8.2 of this Declaration of Trust and only
after the Event of Default with respect to the Preferred Securities
has been cured, waived, or otherwise eliminated, the holders of a
majority in aggregate Liquidation Amount of the Common Securities will
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee or to
exercise any trust or power conferred upon the Property Trustee under
the Declaration of Trust, including the right to direct the Property
Trustee to exercise the remedies available to it as a holder of the
Debentures but excluding the right to direct the Property Trustee to
consent to an amendment, modification or termination of the Indenture
(which shall be as provided below). So long as any Debentures are held
by the Property Trustee, the Trustees shall not (A) direct the time,
method and place of conducting any proceeding for any remedy available
to the Debenture Trustee, or executing any trust or power conferred on
the Debenture Trustee with respect to such Debentures, (B) waive any
past default which is waivable under Section 5.13 of the Indenture,
(C) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a majority
in aggregate Liquidation Amount of all Common Securities (except in
the case of clause (D), which consent, in the event that no Event of
Default shall occur and be continuing, shall be of the Holders of all
Trust Securities, voting together as a single class); provided,
however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby,
27
no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Common Securities. The
Trustees shall not revoke any action previously authorized or approved
by a vote of the Holders of the Common Securities, except by a
subsequent vote of the Holders of the Common Securities. The Property
Trustee shall notify all Holders of record of the Common Securities of
any notice of default received from the Debenture Trustee with respect
to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Common Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that the Trust will not be classified as an association
taxable as a corporation or partnership for United States federal
income tax purposes on account of such action.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of
this Declaration of Trust, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with
the approval of the Holders of 66 2/3% in aggregate Liquidation Amount of
the Outstanding Preferred Securities.
SECTION 6.2. Notice of Meetings. Notice of all meetings of the Holders
of the Preferred Securities, stating the time, place and purpose of the meeting,
shall be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at its registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
the Holders of Preferred Securities to vote on any matters as to which such
Holders are entitled to vote.
Holders of record of 50% of the Preferred Securities (based upon their
Liquidation Amount), present in person or by proxy, shall constitute a quorum at
any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of record of Preferred Securities present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon their
Liquidation Amount) held by Holders of record of Preferred Securities present,
either in person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Declaration of Trust requires a greater number of
affirmative votes.
SECTION 6.4. Voting Rights. Securityholders shall be entitled to one
vote for each $[__] of Liquidation Amount represented by their Trust Securities
in respect of any matter as to which such Securityholders are entitled to vote.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by the Depositor, the Trustees or any
affiliate of any Trustee shall, for purposes of such vote or consent, be treated
as if such Preferred Securities were not outstanding.
SECTION 6.5. Proxies, Etc. At any meeting of Securityholders, any
Securityholders entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it
28
shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several Persons, any one of them may vote at any meeting in
person or represented by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than [a majority] of all Outstanding
Trust Securities (based upon their Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Declaration of Trust) shall consent to the
action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Declaration of Trust, or for the purpose of any other
action, the Property Trustee may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distributions or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by
Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Declaration of Trust and (subject to Section 8.1) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
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 the signer's individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of the signer's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which any Trustee receiving the same deems
sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
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Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article 6, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Upon the occurrence and continuation of an Event of Default, the
holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as holder of the Debentures against the Depositor. If the
Property Trustee fails to enforce its rights as holder of the Debentures after a
request therefor by a holder of Preferred Securities, such holder may, to the
fullest extent permitted by law, proceed to enforce such rights directly against
the Depositor. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Depositor to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
Redemption Date), then a holder of Preferred Securities shall have the right to
institute a proceeding directly against the Depositor, for enforcement of
payment to such holder of the principal amount of or interest on Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder after the respective due date specified in
the Debentures (a "Direct Action"). In connection with any such Direct Action,
the rights of the Depositor will be subrogated to the rights of any holder of
the Preferred Securities to the extent of any payment made by the Depositor to
such holder of Preferred Securities as a result of such Direct Action.
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any Person or entity.
SECTION 6.9. Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that (each such representation
and warranty made by the Property Trustee and the Delaware Trustee being made
only with respect to itself):
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Delaware Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform
its obligations under this
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Declaration of Trust and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration of Trust;
(d) this Declaration of Trust has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(e) this Declaration of Trust has been duly authorized, executed and
delivered by the Delaware trustee under Delaware law (excluding tax and
securities laws) constitutes the valid and legally binding agreement of the
Delaware trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(f) the execution, delivery and performance by the Property Trustee of
this Declaration of Trust have been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and does not
require any approval of stockholders of the Property Trustee and such
execution, delivery and performance will not (i) violate the Property
Trustee's charter or by-laws, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee is a party or by which it is bound, or (iii) to the Property
Trustee's knowledge violate any law, governmental rule or regulation of the
United States or the State of New York as the case may be, governing the
banking, corporate, or trust powers of the Property Trustee or the Delaware
Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;
(g) the execution, delivery and performance by the Delaware Trustee of
this Declaration of Trust have been duly authorized by all necessary
corporate or other action on the part of the Delaware Trustee and does not
require any approval of stockholders of the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Delaware
Trustee's charter or by-laws, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Delaware
Trustee is a party or by which it is bound, or (iii) to the Delaware
Trustee's knowledge violate any law, governmental rule or regulation of the
United States or the State of Delaware as the case may be;
(h) neither the authorization, execution or delivery by the Property
Trustee of this Declaration of Trust nor the consummation of any of the
transactions by the Property Trustee contemplated herein or therein to its
knowledge requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to, any
governmental authority or agency under any existing federal law governing
the banking, corporate or trust powers of the Property Trustee under the
laws of the United States, the State of New York (excluding any securities
laws of any jurisdiction);
(i) neither the authorization, execution or delivery by the Delaware
Trustee of this Declaration of Trust nor the consummation of any of the
transactions by the
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Delaware Trustee contemplated herein or therein to its knowledge requires
the consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to, any governmental
authority or agency under any existing federal law governing the banking,
corporate or trust powers of the Delaware Trustee under the laws of the
United States or the State of Delaware (excluding any securities laws of
any jurisdiction);
(j) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against
or affecting the Property Trustee or the Delaware Trustee in any court or
before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the
Property Trustee or the Delaware Trustee, as the case may be, to enter into
or perform its obligations as one of the Trustees under this Declaration of
Trust.
SECTION 7.2. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Declaration of Trust and the Securityholders will be, as of such date,
entitled to the benefits of this Declaration of Trust; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Property Trustee or the
Delaware Trustee, as the case may be, of this Declaration of Trust.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Declaration of Trust and, in the case of the Property
Trustee, by the Trust Indenture Act. The Property Trustee, before the
occurrence of any Event of Default and after the curing or waiving of all
Events of Default that may have occurred, shall undertake to perform only
such duties and obligations as are specifically set forth in this
Declaration of Trust and the Trust Indenture Act and no implied covenants
shall be read into this Declaration of Trust against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 8.2) of which a responsible officer of the Property
Trustee has actual knowledge, the Property Trustee shall exercise such
rights and powers vested in it by this Declaration of Trust and the Trust
Indenture Act, and use the same degree of care and skill in its exercise,
as a prudent individual would exercise or use under the circumstances in
the conduct of his or her own affairs. Notwithstanding the foregoing, no
provision of this Declaration of Trust shall require the Trustees to expend
or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of
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this Declaration of Trust relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to
the provisions of this Section. Nothing in this Declaration of Trust shall
be construed to release the Administrative Trustees or the Delaware Trustee
from liability for their own grossly negligent action, their own grossly
negligent failure to act, or their own willful misconduct. To the extent
that, at law or in equity, an Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Administrative Trustee's good faith
reliance on the provisions of this Declaration of Trust or advice of
counsel. The provisions of this Declaration of Trust, to the extent that
they restrict the duties and liabilities of the Administrative Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.1(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this
Declaration of Trust or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Declaration of Trust shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in Liquidation Amount
of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property as fiduciary
assets, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust and
the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment
33
Account maintained by the Property Trustee pursuant to Section 3.1 and
except to the extent otherwise required by law; and
(v) neither the Property Trustee nor the Administrative Trustees
shall be responsible for monitoring each other's compliance or the
compliance of the Depositor with their respective duties under this
Declaration of Trust, nor shall the Property Trustee or the
Administrative Trustees be liable for each other's default or
misconduct or that of the Depositor.
SECTION 8.2. Notice of Defaults.
(a) Within ten days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice
of such Event of Default to the holders of Preferred Securities, the
Administrative Trustees and the Depositor, unless such Event of Default
shall have been cured or waived, provided that, except for a default in the
payment of principal of (or premium, if any) or interest on any of the
Debentures, the Property Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee,
or a trust committee of directors and/or responsible officers of the
Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Preferred Securities.
(b) Within ten days after the receipt of notice of the Depositor's
exercise of its right to extend the interest payment period for the
Debentures pursuant to the Indenture, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders, unless such exercise shall have been
revoked.
(c) The Holders of a majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration of Trust shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority")
to be waived under the Indenture, the Event of Default under the
Declaration of Trust may only be waived by the vote of the Holders of
the same proportion in Liquidation Amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
The provisions of Section 6.1(b) and this Section 8.2(c) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration of Trust and the Preferred Securities, as permitted by the
Trust Indenture Act. Upon such waiver, any such default shall cease to
exist, and any Event of Default with respect to the Preferred Securities
arising therefrom shall be deemed to have been cured, for every purpose of
this Declaration of Trust, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the
Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of an Event of
34
Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such
Event of Default with respect to the Common Securities for all purposes of
this Declaration of Trust without any further act, vote, or consent of the
Holders of the Common Securities.
(d) The Holders of a majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section
8.2(d), the Event of Default under the Declaration of Trust shall also
not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration of Trust as
provided below in this Section 8.2(d), the Event of Default under the
Declaration of Trust may only be waived by the vote of the Holders of
the same proportion in Liquidation Amount of the Common Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
provided further, that each Holder of Common Securities will be deemed to
have waived any such Event of Default and all Events of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Preferred Securities and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee in accordance with the terms of the Securities. The
provisions of Section 6.1(b) and this Section 8.2(d) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration of Trust and the Preferred Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section
8.2(d), upon such waiver, any such default shall cease to exist and any
Event of Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this Declaration of
Trust, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any
right consequent thereon.
(e) A waiver of a Debenture Event of Default under the Indenture by
the Property Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration of Trust. The foregoing provisions of this Section 8.2(e)
shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration of Trust and the Preferred Securities, as
permitted by the Trust Indenture Act.
(f) The Holders of a majority in liquidation amount of Preferred
Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee
or to direct the exercise of any trust or
35
power conferred upon the Property Trustee, including the right to direct
the Property Trustee to exercise the remedies available to it as holder of
the Debentures; provided, however, that the Property Trustee shall have the
right to decline to follow any such direction if the Property Trustee shall
determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Property Trustee, being
advised by counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Property Trustee, in good faith, by its
board of directors or trustees, executive committee, or a trust committee
of directors or trustees and/or responsible officers, shall determine that
the action or proceedings so directed would involve the Property Trustee in
personal liability. If the Property Trustee fails to enforce its rights
under the Debentures after the Holders of a majority in liquidation amount
of the Preferred Securities have so directed the Property Trustee, a holder
of record of such Preferred Securities may, to the fullest extent permitted
by law, institute a legal proceeding against the Depositor to enforce the
Property Trustee's rights under the Debentures without first instituting
first instituting any legal proceeding against the Property Trustee or any
other Person.
SECTION 8.3. Certain Rights of Property Trustee. Subject to the
provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if no Event of Default has occurred and is continuing and, (i) in
performing its duties under this Declaration of Trust the Property Trustee
is required to decide between alternative courses of action or (ii) in
construing any of the provisions in this Declaration of Trust the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application
of any provision of this Declaration of Trust, then, except as to any
matter as to which the Holders of Preferred Securities are entitled to vote
under the terms of this Declaration of Trust, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from taking,
by the Depositor; provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business Days after
it has delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Declaration of
Trust as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Declaration of Trust shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of Trust, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering
36
or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers' Certificate and an
Opinion of Counsel which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to accomplish any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon and in accordance with such advice; and the
Property Trustee shall have the right at any time, upon prior notice to the
Depositor, to seek instructions concerning the administration of this
Declaration of Trust from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration of Trust at the
request or direction of any of the Securityholders pursuant to this
Declaration of Trust, unless such Securityholders shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolutions, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, unless requested in writing to do so by Holders of
record of 25% or more of the Preferred Securities (based upon their
Liquidation Amount), but the Property Trustee may make such further inquiry
or investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys or an Affiliate, provided that the Property Trustee
shall be responsible for its own negligence, recklessness or bad faith with
respect to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Declaration of Trust the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities, which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration of
Trust.
37
No provision of this Declaration of Trust shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall not
be taken as the statements of the Trustees, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities. Except as provided in the definition
of the term "Outstanding" in Article 1, any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Section 8.8 and 8.12, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees. The Depositor agrees:
(a) to pay the Trustees from time to time such compensation for all
services rendered by them hereunder as the parties shall agree from time to
time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Declaration of Trust (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its gross
negligence (or, in the case of the Property Trustee, ordinary negligence),
willful misconduct or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent
of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates (referred to herein as an "Indemnified Person") from and against
any loss, damage, liability, tax, penalty, expense or claim of any kind or
nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration of Trust, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, ordinary negligence), willful misconduct or bad faith
with respect to such acts or omissions; and
(d) no Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
SECTION 8.7. Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person
that is eligible pursuant to
38
the Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to
the Trust Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall be either (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or
(ii) a legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of applicable Delaware
law that shall act through one or more persons authorized to bind such
entity.
SECTION 8.8. Conflicting Interests. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Declaration of Trust. The Property Trustee's
services as Trustee under the Guarantee and as Debenture Trustee shall not be
deemed to constitute a conflicting interest.
SECTION 8.9. Resignation and Removal; Appointment of Successor.
(a) Subject to Sections 8.9(b) and 8.9(c), any Trustee (the "Relevant
Trustee") may be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Depositor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a majority in Liquidation Amount of the Common Securities voting as
a class.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the
qualifications to act as a Property Trustee under Section 8.7 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and delivered to the
Trust, the Depositor and the removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 8.7 (a "Successor
Delaware Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Depositor and the removed Delaware Trustee.
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(d) A Trustee appointed to office shall hold office until his, her or
its successor shall have been appointed or until his, her or its death,
removal, resignation, dissolution or liquidation. Any Trustee may resign
from office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the Depositor
and the Trust, which resignation shall take effect upon such delivery or
upon such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(1) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(2) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the
Depositor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best efforts
promptly to appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with Section
8.9(d).
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this
Section 8.9 within 60 days after delivery pursuant to this Section 8.9 of
an instrument of resignation or removal, the Property Trustee or Delaware
Trustee resigning or being removed, as applicable, may petition any court
of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(h) The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 10.8 and shall give
notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
(i) Notwithstanding the foregoing or any other provision of this
Declaration of Trust, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of the
remaining Administrative Trustees if there are at least two of them
40
or (b) otherwise by the Depositor (with the successor in each case being a
Person who satisfies the eligibility requirement for Administrative
Trustees or the Delaware Trustee, as the case may be, set forth in Section
8.7).
(j) The indemnity provided to a Trustee under Section 8.6 shall
survive any Trustee's resignation or removal.
SECTION 8.10. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee shall execute
and deliver an amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee and upon the execution and delivery of such amendment
the resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee, such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person 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 Relevant Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.12. Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
41
SECTION 8.13. Reports by Property Trustee.
(a) To the extent required by the Trust Indenture Act, within 60 days
after December 31 of each year commencing with December 31, 199[9] the
Property Trustee shall transmit to all Securityholders in accordance with
Section 10.8 and to the Depositor, a brief report dated as of such December
31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all
of its obligations under this Declaration of Trust during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respects with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Declaration of Trust as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(c) A copy of such report shall, at the time of such transmissions to
Holders, be filed by the Property Trustee with each national securities
exchange or self-regulatory organization upon which the Trust Securities
are listed, with the Commission and with the Depositor.
SECTION 8.14. Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 8.15. Evidence of Compliance with Conditions Precedent. Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration of Trust that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.16. Number of Trustees.
(a) The number of Trustees shall be [four], provided that the Holder
of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee and
the Delaware Trustee may be the same Person.
42
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.16(a), or
if the number of Trustees is increased pursuant to Section 8.16(a), a
vacancy shall occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.9,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Declaration of
Trust.
SECTION 8.17. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents contemplated
in Section 2.7(a), including any registration statement or amendment
thereof filed with the Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein.
SECTION 8.18. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be [_______________],
an individual, and [_________________], an individual, and their successors
shall be appointed by the Holders of a majority in Liquidation Amount of
the Common Securities and may resign or be removed by the Holders of a
majority in Liquidation Amount of the Common Securities at any time. Upon
any resignation or removal, the Depositor shall appoint a successor
Administrative Trustee. If at any time there is no Administrative Trustee,
the Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of competent
jurisdiction for the appointment of one or more Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.18, the Administrative Trustees
in office, regardless of their number (and not withstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
(c) Notwithstanding the foregoing or any other provision of this
Declaration of Trust, if any Administrative Trustee who is a natural person
dies or becomes, in the opinion of the Holders of a majority in Liquidation
Amount the Common Securities, incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by the
unanimous act of the remaining Administrative Trustees, if there were at
least two of them prior to such vacancy, and by the Depositor, if there
were not two such Administrative Trustees immediately prior to such vacancy
(with the
43
successor being a Person who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.7).
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date. Unless earlier
terminated, the Trust shall automatically terminate on [______ __, ____] (the
"Expiration Date"), following the distribution of the Trust Property in
accordance with Section 9.4.
SECTION 9.2. Early Termination. The first to occur of any of the
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the occurrence of a Special Event except in the case of a Tax
Event following which the Depositor has elected to (i) pay any Additional
Sums (in accordance with Section 4.4) such that the net amount received by
Holders of Preferred Securities in respect of Distributions is not reduced
as a result of such Tax Event and the Depositor has not revoked any such
election or failed to make such payments or (ii) redeem all or some of the
Debentures pursuant to Section 4.4(a);
(c) the redemption, conversion or exchange of all of the Trust
Securities;
(d) upon the repayment of the Debentures or at such time as no
Debentures are outstanding;
(e) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(f) receipt by the Property Trustee of written notice from the
Depositor at any time (which notice is optional and wholly within the
discretion of the Depositor) of its intention to terminate the Trust and
distribute the Debentures in exchange for the Preferred Securities.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the liquidation
of the Trust pursuant to Section 9.4, or upon the redemption of all of the
Trust Securities pursuant to Section 4.2, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities; (b) the
payment of all expenses owed by the Trust; (c) the discharge of all
administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders, and (d) the filing of the certificate of cancellation with
the Secretary of State of the State of Delaware pursuant to Section 3810 of
the Delaware Business Trust Act. Notwithstanding any provision hereof to the
contrary, each of Depositor's obligations set forth in Section 8.3 hereof
shall survive and continue regardless of the occurrence of any of the
foregoing.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (e) or
(f) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Administrative Trustees and the Property Trustee as
expeditiously as the Trustees
44
determine to be possible by distributing, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, to each
Securityholder an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Trust Securities held by such Holder,
subject to Section 9.4(e). Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to each Holder
of Trust Securities at such Holder's address as it appears in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Preferred Securities held by such
Holder; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.4(e) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(e) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency or its nominee, as the record holder
of such Trust Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such
distribution and (iii) any Trust Securities Certificates not held by the
Clearing Agency will be deemed to represent an aggregate principal amount
of Debentures equal to the aggregate Liquidation Amount of Preferred
Securities held by such Holders, and bearing accrued and unpaid interest in
an amount equal to the accrued and unpaid Distributions on such Trust
Securities until such certificates are presented to the Property Trustee
for transfer or reissuance.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not to be
practicable, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner
as the Property Trustee determines in good faith. In such event, on the
date of the dissolution, winding up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding-up or
termination, the
45
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities
will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid)
with Holders of Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing, the Preferred Securities shall have
a priority over the Common Securities.
SECTION 9.5 Mergers, Consolidations, Amalgamations, Conversions or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, convert into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or other
Person, except pursuant to this Section 9.5. At the request of the Depositor,
with the consent of the Administrative Trustees and without the consent of the
Property Trustee, the Delaware Trustee or the Holders of the Preferred
Securities, the Trust may merge with or into, consolidate, amalgamate, convert
into, be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that (i) such successor entity either (a) expressly assumes all
of the obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to Distributions and payments upon liquidation, redemption
and otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity, possessing the same powers and duties as the Property Trustee, as the
holder of the Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any, (iv) such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, conversion, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, conversion, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the Holder's
interest in the new entity), (b) following such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease neither the
Trust nor such successor entity will be required to register as an "investment
company" under the 1940 Act, and (c) following such merger, consolidation,
amalgamation, conversion or replacement, the Trust or such successor entity will
be treated as a grantor trust for United States federal income tax purposes and
(viii) the Depositor or any permitted successor or assignee owns all of the
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in aggregate Liquidation Amount of
the Preferred Securities, consolidate, amalgamate, convert into, merge with or
into, be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other entity to
consolidate, amalgamate, convert into, merge with or into, or replace it if such
consolidation, amalgamation, conversion, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States federal income tax purposes.
46
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders. The death or
incapacity of any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Declaration of Trust, nor entitle
the legal representatives or heirs of such person or any Securityholder for such
person to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION 10.2. Amendment.
(a) This Declaration of Trust may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i)
to cure any ambiguity, correct or supplement any provision herein which may
be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this
Declaration of Trust, which shall not be inconsistent with the other
provisions of this Declaration of Trust, (ii) to modify, eliminate or add
to any provisions of this Declaration of Trust to such extent as shall be
necessary to ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust at all times that any Trust
Securities are Outstanding or to ensure that the Trust will not be required
to register as an "investment company" under the 1940 Act, or be classified
as other than a grantor trust for United States federal income tax
purposes, or (iii) to maintain the qualification of this Declaration of
Trust under the Trust Indenture Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect
the interests of any Securityholder, and any amendments of this Declaration
of Trust shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Declaration of Trust may be amended by the Trustees and the Depositor
with (i) the consent of Holders representing not less than 66 2/3% (based
upon Liquidation Amounts) of the Trust Securities then Outstanding, acting
as a single class, and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power
granted to the Trustees in accordance with such amendment will not affect
the Trust's status as a grantor trust for United States federal income tax
purposes or the Trust's not being required to register as an "investment
company" under the 1940 Act, provided, however, if any amendment or
proposal that would adversely affect the powers, preferences or special
rights of the Trust Securities, whether by way of amendment or otherwise,
would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of 66 2/3% in Liquidation Amount of such class of
Trust Securities.
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof),
this Declaration of Trust may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in respect of the
Trust Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on
or after such date; notwithstanding any other provision herein, without the
unanimous consent of the
47
Securityholders (such consent being obtained in accordance with Section 6.3
or 6.6 hereof), this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Declaration of Trust,
no Trustee shall enter into or consent to any amendment to this Declaration
of Trust which would cause the Trust to be required to register as an
"investment company" under the 1940 Act, or to be classified as other than
a grantor trust for United States federal income tax purposes or to reduce
or otherwise adversely affect the powers of the Property Trustee.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor, this Declaration of Trust
may not be amended in a manner which imposes any additional obligation on
the Depositor.
(f) In the event that any amendment to this Declaration of Trust is
made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust which
affects its own rights, duties or immunities under this Declaration of
Trust.
(h) The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to this
Declaration of Trust is in compliance with this Declaration of Trust.
SECTION 10.3. Separability. In case any provision in this
Declaration of Trust or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW. THIS DECLARATION OF TRUST AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES
WITH RESPECT TO THIS DECLARATION OF TRUST IN THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
DELAWARE.
SECTION 10.5. Payments Due on Non-Business Day. If the date fixed
for any payment on any Trust Security shall be a day which is not a Business
Day, then such payment need not be made on such date but may be made on the
next succeeding day which is a Business Day (except as otherwise provided in
Section 4.1(a) and Section 4.2(d)), with the same force and effect as though
made on the date fixed for such payment, and no interest shall accrue thereon
for the period after such date.
SECTION 10.6. Successors. This Declaration of Trust shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the
Trust or the Relevant Trustee, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article 8 of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.7. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration of
Trust.
SECTION 10.8. Reports, Notices and Demands. Any report, notice,
demand or other communications which by any provision of this Declaration of
Trust is required or permitted to be given or
48
served to or upon any Securityholder or the Depositor may be given or served in
writing by deposit thereof, first-class postage prepaid, in the United States
mail, hand delivery or facsimile transmission, in each case, addressed, (a) in
the case of a Holder of Preferred Securities, to such Holder as such Holder's
name and address may appear on the Securities Register; and (b) in the case of
the Holder of the Common Securities, to Boise Cascade Corporation, 1111 West
Jefferson Street, P.O. Box 50, Boise, Idaho 83728-0001, Attention: General
Counsel.
Any notice to Preferred Securityholders shall also be given to such Owners
as have, within two years preceding the giving of such notice, filed their names
and addresses with the Property Trustee for that purpose. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given, or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of this
Declaration of Trust is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee, to
[_______________________, __________________, _________________], Attention:
Corporate Trust Services, (b) with respect to the Delaware Trustee, to
[_________________________, __________________, _______________], Attention:
Corporate Trust Administration, with a copy of any such notice to the Property
Trustee at its address above, and (c) with respect to the Administrative
Trustees, to them at the address for notices to the Depositor, marked
"Attention: General Counsel." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
9, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that, at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Declaration of Trust.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of
Trust and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is the
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Declaration of Trust by any of the provisions of the Trust Indenture Act,
such required provision shall control. If any provision of this Declaration
of Trust modifies or excludes any provision of the Trust
49
Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Declaration of Trust as so modified or to
be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration of
Trust shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 10.11. ACCEPTANCE OF TERMS OF DECLARATION OF TRUST,
GUARANTEE AND INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS DECLARATION OF TRUST PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
DECLARATION OF TRUST SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS TO THE TRUST
AND SUCH SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts. This Declaration of Trust may contain
more than one counterpart of the signature page and this Declaration of Trust
may be executed by the affixing of the signature of each of the Trustees to
one of such counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature page.
SECTION 10.13. Purchases of Trust Securities. Subject to applicable
law (including, without limitation, United States federal securities law), the
Depositor or its subsidiaries or Affiliates may at any time and from time to
time purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
50
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Declaration of Trust to be duly executed as of the day and
year first above written.
BOISE CASCADE CORPORATION,
as Depositor
By:
---------------------------------------
Name:
Title:
[ ],
---------------------------------------
as Property Trustee
By:
---------------------------------------
Name:
Title:
[ ],
---------------------------------------
as Delaware Trustee
By:
---------------------------------------
Name:
Title:
[ ],
---------------------------------------
as Administrative Trustee
[ ],
---------------------------------------
as Administrative Trustee
51
EXHIBIT A
CERTIFICATE OF TRUST
OF
BOISE CASCADE TRUST [__]
THIS Certificate of Trust of Boise Cascade Trust [__] (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware business
corporation, and John W. Holleran, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Boise Cascade
Trust [__].
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being all of the initial trustees of
the Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By:
---------------------------------------
Name:
Title:
---------------------------------------
Name: John W. Holleran
A-1
EXHIBIT B
FORM OF CERTIFICATE
DEPOSITARY AGREEMENT
B-1
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
--------- ---------------------
Certificate Evidencing Common Securities
of
Boise Cascade Trust [__]
Common Securities
(liquidation amount $[__] per Common Security)
Boise Cascade Trust [__], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Boise Cascade
Corporation (the "Holder") is the registered owner of __________ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the "Common Securities"). In accordance with Section 5.10
of the Declaration of Trust (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of [______ __], 199[9], as the same may be amended from time
to time (the "Declaration of Trust") including the designation of the terms of
the Common Securities as set forth therein. The Holder is entitled to the
benefits of the Common Securities Guarantee Agreement entered into by the Holder
and [__________________________], as Guarantee Trustee, dated as of [______ __],
199[9] (the "Guarantee"), to the extent provided therein. The Trust will furnish
a copy of the Declaration of Trust and the Guarantee to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Declaration of
Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of [______ __] 199[9].
BOISE CASCADE TRUST [__]
By:
------------------------------------------
Name:
As Administrative Trustee
C-1
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-mentioned
Declaration of Trust.
Dated: [______ __], 199[9].
[ ],
---------------------------------------
as Property Trustee
By:
------------------------------------------
Authorized Signatory
C-2
EXHIBIT D
THIS PREFERRED SECURITY IS A BOOK- ENTRY PREFERRED SECURITIES CERTIFICATE
WITHIN THE MEANING OF THE DECLARATION OF TRUST HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF
DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST AND NO TRANSFER OF THIS
PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE
BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF
DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (55 WATER STREET, NEW YORK), TO BOISE CASCADE TRUST [__] OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
D-1
Certificate Number Number of Common Securities
--------- -----------
CUSIP No. __________
$______________
Certificate Evidencing Preferred Securities
of
Boise Cascade Trust [__]
__% Convertible Preferred Securities
(liquidation amount $[__] per Preferred Security)
Boise Cascade Trust [__], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that __________________
(the "Holder") is the registered owner of _______ preferred securities of the
Trust representing an undivided beneficial interest in the assets of the Trust
and designated the Boise Cascade Trust [__] __% [Convertible] Preferred
Securities (liquidation amount $[__] per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Declaration of Trust (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of [______ __], 199[9] as the same may be amended from time
to time (the "Declaration of Trust") including the designation of the terms of
Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement entered into by Boise Cascade Corporation, a
Delaware corporation, and [__________________________], as Guarantee Trustee,
dated as of [______ __], 199[9] (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Declaration of Trust and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office. Upon receipt of this
certificate, the Holder is bound by the Declaration of Trust and is entitled to
the benefits thereunder.
D-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of [______ __], 199[9].
BOISE CASCADE TRUST [__]
By:
------------------------------------------
Name:
An Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration of Trust.
Dated: [______ __], 199[9]
[ ],
---------------------------------------
as Property Trustee
By:
------------------------------------------
Authorized Signatory
D-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
------------------------------------
Signature:
-------------------------------
(Sign exactly as our name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:
-----------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Securities Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Securities
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
[TO BE ATTACHED TO GLOBAL CERTIFICATE]
SCHEDULE A
The initial liquidation amount of this Global Certificate shall be
$__________. The following increases or decreases in the liquidation amount of
this Global Certificate have been made:
Amount of
increase in
Liquidation
Amount of this Amount of Liquidation Signature of
Global decrease in Amount of this authorized
Certificate Liquidation Global Certificate officer of
including upon Amount of this following such Trustee or
Date exercise of over Global decrease or Securities
Made allotment option Certificate increase Custodian
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT E
NOTICE OF CONVERSION
To: [__________________________]
as Property Trustee of
Boise Cascade Trust [__]
The undersigned owner of these Trust Securities hereby irrevocably
exercises the option to convert these Trust Securities, or the portion below
designated, into Common Stock of BOISE CASCADE CORPORATION (the "Company Common
Stock") in accordance with the terms of the Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as [______ __], 199[9], by __________
and __________, as Administrative Trustees, [___________________], as Delaware
Trustee, [_______________________], as Property Trustee, Boise Cascade
Corporation, as Depositor, and by the Holders, from time to time, of individual
beneficial interests in the Trust to be issued pursuant to the Declaration of
Trust. Pursuant to the aforementioned exercise of the option to convert these
Trust Securities, the undersigned hereby directs the Conversion Agent (as that
term is defined in the Declaration of Trust) to (i) exchange such Trust
Securities for a portion of the Debentures (as that term is defined in the
Declaration of Trust) held by the Trust (at the rate of exchange specified in
the terms of the Trust Securities set forth in the Declaration of Trust) and
(ii) immediately convert such Debentures on behalf of the undersigned, into
Company Common Stock (at the conversion rate specified in the terms of the Trust
Securities set forth in the Declaration of Trust).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: ,
------------ ----
in whole in part
-- --
Number and type of Trust Securities
to be converted:
-----------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Company Common
Stock are to be issued, along with
the address or addresses of such
person or persons
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Signature (for conversion only)
E-1
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
------------------------------------
------------------------------------
------------------------------------
Signature Guarantee:
---------------
- ----------
*(Signature must be guaranteed by an institution which is a member of the
following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to the Trustee.)
E-2
EXHIBIT 4.21
------------------------------------------------------------
GUARANTEE AGREEMENT
between
Boise Cascade Corporation
and
[-------------------------]
Relating to the Preferred Securities of
Boise Cascade Trust [__]
Dated as of [______ __], 199[9]
------------------------------------------------------------
CROSS REFERENCE TABLE*
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
310(a)........................................................................4.1(a)
310(b)...................................................................4.1(c), 2.8
310(c)..................................................................Inapplicable
311(a)........................................................................2.2(b)
311(b)........................................................................2.2(b)
311(c)..................................................................Inapplicable
312(a)........................................................................2.2(a)
312(b)........................................................................2.2(b)
313..............................................................................2.3
314(a)...........................................................................2.4
314(b)..................................................................Inapplicable
314(c)...........................................................................2.5
314(d)..................................................................Inapplicable
314(e).................................................................1.1, 2.5, 3.2
314(f)...........................................................................3.2
315(a)........................................................................3.1(d)
315(b)...........................................................................2.7
315(c)...........................................................................3.1
315(d)........................................................................3.1(d)
316(a).................................................................1.1, 2.6, 5.4
316(b)...........................................................................5.3
317(a)..................................................................Inapplicable
317(b)..................................................................Inapplicable
318(a)........................................................................2.1(b)
318(b)...........................................................................2.1
318(c)........................................................................2.1(a)
- -----------------
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
TABLE OF CONTENTS
PAGE
-----
ARTICLE 1 DEFINITIONS........................................................................1
SECTION 1.1. DEFINITIONS........................................................................1
ARTICLE 2 TRUST INDENTURE ACT................................................................5
SECTION 2.0. TRUST INDENTURE ACT; APPLICATION...................................................5
SECTION 2.1. LIST OF HOLDERS....................................................................6
SECTION 2.2. REPORTS BY THE GUARANTEE TRUSTEE...................................................6
SECTION 2.3. PERIODIC REPORTS TO GUARANTEE TRUSTEE..............................................6
SECTION 2.4. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT...................................7
SECTION 2.5. EVENTS OF DEFAULT; WAIVER..........................................................7
SECTION 2.6. EVENT OF DEFAULT; NOTICE...........................................................7
SECTION 2.7. CONFLICTING INTERESTS..............................................................7
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE.................................8
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.........................................8
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE...............................................10
SECTION 3.3. INDEMNITY.........................................................................12
ARTICLE 4 GUARANTEE TRUSTEE.................................................................12
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY....................................................12
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE.....................13
ARTICLE 5 GUARANTEE.........................................................................13
SECTION 5.1. GUARANTEE.........................................................................13
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.......................................................14
SECTION 5.3. OBLIGATIONS NOT AFFECTED..........................................................14
SECTION 5.4. RIGHTS OF HOLDERS.................................................................15
SECTION 5.5. GUARANTEE OF PAYMENT..............................................................15
SECTION 5.6. SUBROGATION.......................................................................16
SECTION 5.7. INDEPENDENT OBLIGATIONS...........................................................16
SECTION 5.8. SUBORDINATION.....................................................................16
ARTICLE 6 COVENANTS.........................................................................16
SECTION 6.1. CERTAIN COVENANTS OF THE GUARANTOR................................................16
ARTICLE 7 TERMINATION.......................................................................18
SECTION 7.1. TERMINATION.......................................................................18
ARTICLE 8 SUBORDINATION OF GUARANTEE........................................................18
SECTION 8.1. GUARANTEE SUBORDINATE TO GUARANTOR SENIOR DEBT....................................18
SECTION 8.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC....................................19
SECTION 8.3. NO PAYMENT WHEN GUARANTOR SENIOR DEBT IN DEFAULT..................................20
SECTION 8.4. GUARANTEE TRUSTEE TO EFFECTUATE SUBORDINATION.....................................20
SECTION 8.5. NO WAIVER OF SUBORDINATION PROVISIONS.............................................21
SECTION 8.6. NOTICE TO GUARANTEE TRUSTEE.......................................................21
SECTION 8.7. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT....................21
SECTION 8.8. GUARANTEE TRUSTEE NOT FIDUCIARY FOR HOLDERS OF GUARANTOR SENIOR DEBT..............21
SECTION 8.9. RIGHTS OF GUARANTEE TRUSTEE AS HOLDER OF GUARANTOR SENIOR DEBT;
PRESERVATION OF GUARANTEE TRUSTEE'S RIGHTS........................................22
SECTION 8.10. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT...................................22
ARTICLE 9 MISCELLANEOUS.....................................................................22
SECTION 9.1. SUCCESSORS AND ASSIGNS............................................................22
SECTION 9.2. AMENDMENTS........................................................................23
SECTION 9.3. NOTICES...........................................................................23
SECTION 9.4. BENEFIT...........................................................................24
SECTION 9.5. INTERPRETATION....................................................................24
SECTION 9.6. GOVERNING LAW.....................................................................25
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of [______ __], 199[9], is
executed and delivered by Boise Cascade Corporation, a Delaware corporation (the
"Guarantor") and [______________________], a national banking association
organized and existing under the laws of the United States, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of Boise Cascade
Trust [__], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as of [______ __], 199[9], among the
Trustees named therein, the Guarantor, as Depositor, and the Holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing _____________ of its % Preferred Securities (liquidation
preference $[__] per preferred security) (the "Preferred Securities")
representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Declaration of Trust;
WHEREAS, the Preferred Securities will be issued by the Issuer
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer's Common Securities (as defined below), will be used to purchase the
Debentures (as defined in the Declaration of Trust) of the Guarantor which will
be deposited with [___________________________], as Property Trustee under the
Declaration of Trust, as trust assets;
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Guarantee Agreement,
the terms set forth below shall, unless the context
1
otherwise requires, have the following meanings. Capitalized or otherwise
defined terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Declaration of Trust as in effect on the date
hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct common
control with such specified Person, provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Common Securities" means the securities representing common
beneficial interests in the assets of the Issuer.
"Common Stock" shall mean the common stock, par value $2.50,
per share, of the Guarantor.
"DEBT" means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every purchase money obligation and every
obligation of such Person issued or assumed as the deferred purchase price of
property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business), all conditional sale
obligations of the Guarantor and all obligations of the Guarantor under any
title retention agreements; (v) every obligation of such Person under currency
hedging arrangements, interest rate protection agreements and other similar
arrangements; (vi) every capital lease obligation of such Person, and (vii)
every obligation of the type referred to in clauses (i) through (vi) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has guaranteed or is responsible for or liable, directly or
indirectly, as obligor or otherwise, including, without limitation, obligations
(contingent or otherwise) to purchase or otherwise acquire, or to assure a
creditor against loss in respect of, any such indebtedness or obligation, and
any such indebtedness or obligation secured by a
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lien on any asset of the Guarantor, whether or not such indebtedness or
obligation is assumed by the Guarantor.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement; provided,
however, that, except with respect to a default in payment of any Guarantee
Payments, no Event of Default shall be deemed to have occurred under this
Guarantee Agreement unless and until the Guarantor shall have received written
notice of default and shall not have cured such default within 60 days after
receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Declaration of Trust) required to be
paid on the Preferred Securities, to the extent the Issuer shall have funds on
hand available therefor at such time, (ii) the redemption price set forth in the
Declaration of Trust, including premium, if any, all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer to the extent
the Issuer shall have funds on hand available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the liquidation preference of $[__] per Preferred Security plus
accrued and unpaid Distributions on the Preferred Securities to the date of
payment to the extent the Issuer shall have funds on hand available to make such
payment and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means [__________________________], until
a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Guarantee Trustee.
"Guarantor Senior Debt" means the principal (including without
limitation all unpaid drawings with respect to letters of credit) of and
premium, if any, and interest (including interest accruing on or after the
filing of any petition in bankruptcy relating to the Guarantor whether or not
such claim for post-petition interest is allowed in such proceeding) on, and all
other amounts owing with respect to, the following, whether outstanding on the
date of execution of this Indenture or thereafter incurred, created or assumed:
(i) all Debt of the Guarantor (other than the Debentures), and (ii) renewals,
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extensions or refundings of any of the obligations referred to in the preceding
clause (i) and in this clause (ii) unless, in the case of any particular
indebtedness, renewal, extension or refunding, under the express provisions of
the instrument creating or evidencing the same or the assumption or guarantee of
the same, or pursuant to which the same is outstanding, such indebtedness or
such renewal, extension or refunding thereof is not superior in right of payment
to the Debentures[; provided that any guarantee by the Guarantor outstanding on
the date of the execution of the Indenture or thereafter created in respect of
the Common Securities or any preferred or preference stock of any affiliate of
the Guarantor shall not rank superior in right of payment to the Debentures].
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Indenture dated as of [______ __],
199[9], between the Guarantor and [_______________________], as trustee, as the
same may be supplemented and amended from time to time.
"List of Holders" has the meaning specified in
Section 2.2 (a).
"Majority in Liquidation Preference of the Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all the
outstanding Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by (i) the Chairman, Chief Executive Officer, President or a
Vice President, and by (ii) the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary of such Person, and
delivered to the Guarantee Trustee. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
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(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any Executive Vice President, Senior Vice President, any First Vice
President, any Vice President, any Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer
or Assistant Trust Officer or any other officer of the Corporate Trust Services
Division of the Guarantee 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 that officer's knowledge of and familiarity with
the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.0. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such
provisions.
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(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 2.1. LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (unless the Guarantee Trustee is acting as
Securities Registrar with respect to the Debentures under the
Indenture) (i) semi-annually, on or before __________ and _______ of
each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders")
as of a date not more than 15 days prior to the delivery thereof, and
(ii) at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to
the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise
been received by the Guarantee Trustee. Notwithstanding the foregoing,
the Guarantor shall not be obligated to provide such List of Holders at
any time the Preferred Securities are represented by one or more Global
Certificates (as defined in the Indenture). The Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.2. REPORTS BY THE GUARANTEE TRUSTEE. On or before
_______, of each calendar year, the Guarantee Trustee shall provide to the
Holders such reports as are required by Section 313 of the Trust Indenture Act,
if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.3. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
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SECTION 2.4. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.5. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Preference of the Securities may, by vote, on behalf of
the Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 2.6. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default known
to the Guarantee Trustee, unless such defaults have been cured before
the giving of such notice, provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee shall
have received written notice, or a Responsible Officer charged with the
administration of the Declaration of Trust shall have obtained written
notice, of such Event of Default.
SECTION 2.7. CONFLICTING INTERESTS. The Declaration of Trust
and the Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
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ARTICLE 3
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall
not transfer this Guarantee Agreement to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to the Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) and is actually known
to the Responsible Officer of the Guarantee Trustee, the Guarantee
Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of Default that may
have occurred;
8
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement;
and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine whether
or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be proved
that the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
not less than a Majority in Liquidation Preference of the
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this
9
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, proxy, 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, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless otherwise
prescribed herein.
(iii) Whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the advice or opinion of such legal counsel with
respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Guarantee Agreement at the request or direction of
any Holder, unless such Holder shall have provided to the
Guarantee Trustee such adequate
10
security and indemnity as would satisfy a reasonable person in
the position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement and use the
same degree of care and skill in the exercise thereof as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(vi) The Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys or
any Affiliate, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it
hereunder.
(viii) Whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the
Holders of a Majority in Liquidation Preference of the
Securities, (B) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance
with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any
11
jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
SECTION 3.3. INDEMNITY. The Guarantor agrees to indemnify the
Guarantee Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the reasonable 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. The Guarantee Trustee
will not claim or exact any lien or charge on any Guarantee Payment as a result
of any amount due to it under this Guarantee Agreement.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then,
for the purposes of this Section and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
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(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act. The Declaration of Trust and the Indenture shall not be
deemed to constitute conflicting interests of the Guarantee Trustee.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b) the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been appointed or
until its removal or resignation. The Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Guarantee Trustee and delivered
to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE 5
GUARANTEE
SECTION 5.1. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees, subject to Section 5.8 and Article 8, to pay in full to
the Holders the Guarantee Payments (without
13
duplication of amounts theretofore paid by or on behalf of the Issuer), as and
when due, regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert other than the defense of payment. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby
waives notice of acceptance of the Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Guarantee Trustee, Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee Agreement
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Debentures as so provided in the
Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of
14
creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer or any of
the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders or the Guarantee
Trustee to give notice to, or obtain the consent of, the Guarantor with respect
to the happening of any of the foregoing.
SECTION 5.4. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Preference of the
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or to direct the exercise of any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; (iv) any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person; and
(v) if an Event of Default with respect to the Debentures constituting the
failure to pay interest or principal on the Debentures on the date such interest
or principal is otherwise payable has occurred and is continuing, then any
Holder shall have the right, which is absolute and unconditional, to proceed
directly against the Guarantor to obtain Guarantee Payments without first
waiting to determine if the Guarantee Trustee has enforced this Guarantee
Agreement or instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts
15
theretofore paid by the Issuer) or upon distribution of Debentures to Holders as
provided in the Declaration of Trust.
SECTION 5.6. SUBROGATION. The Guarantor shall be subrogated to
all (if any) rights of the Holders against the Issuer in respect of any amounts
paid to the Holders by the Guarantor under this Guarantee Agreement and shall
have the right to waive payment by the Issuer pursuant to Section 5.1; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities and that the Guarantor
shall be liable as principal and debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.3 hereof.
SECTION 5.8. SUBORDINATION. The Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and subject in right of payment to the prior payment in full in cash of all
Guarantor Senior Debt and PARI PASSU with the most senior preferred stock, if
any, now or hereafter issued by the Guarantor, with any guarantee now or
hereafter entered into by the Guarantor in respect of the Common Securities or
of any preferred or preference stock of any affiliate of the Guarantor.
ARTICLE 6
COVENANTS
SECTION 6.1. CERTAIN COVENANTS OF THE GUARANTOR.
(a) Guarantor covenants and agrees that if and so long as (i)
the Issuer is the holder of all the Debentures, (ii) a Tax Event (as
defined in the Declaration of Trust) in respect of the Issuer has
occurred and is continuing and (iii) the Guarantor has elected, and has
not revoked such election, to pay Additional Sums (as defined in the
Declaration of Trust) in respect of the Preferred Securities
16
and Common Securities, the Guarantor will pay to the Issuer such
Additional Sums.
(b) The Guarantor covenants and agrees that it will not, and
will not permit any subsidiary of the Guarantor to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or
make a liquidation payment with respect to, any shares of the
Guarantor's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any
debt securities (including guarantees of indebtedness for money
borrowed) of the Guarantor that rank PARI PASSU with or junior to the
Debentures (other than (a) any dividend, redemption, liquidation,
interest, principal or guarantee payment by Guarantor where the payment
is made by way of securities (including capital stock) that rank PARI
PASSU with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made, (b)
redemptions or purchases of any rights pursuant to the Shareholders
Rights Plan (as defined in the Indenture), or any successor to such
Shareholders Rights Plan, and the declaration of a dividend of such
rights or the issuance of preferred stock under such plans in the
future, (c) payments under this Agreement, (d) purchases of Common
Stock related to the issuance of Common Stock under any of the
Guarantor's benefit plans for its directors, officers or employees, (e)
as a result of a reclassification of the Guarantor's capital stock or
the exchange or conversion of one series or class of the Guarantor's
capital stock for another series or class of the Guarantor's capital
stock and (f) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged) if at such time (x) there shall have occurred any event of
which the Guarantor has actual knowledge that (A) with the giving of
notice or the lapse of time, or both, would constitute an "Event of
Default" under the Indenture with respect to the Debentures and (B) in
respect of which the Guarantor shall not have taken reasonable steps to
cure, (y) the Guarantor shall be in default with respect to its payment
of any obligations under the Guarantee or (z) the Guarantor shall have
given notice of its selection of an Extension Period (as defined in the
Indenture) with respect to the Debentures and shall not have rescinded
such notice, or such Extension Period, or any extension thereof, shall
be continuing.
(c) The Guarantor covenants and agrees (i) to maintain
directly or indirectly 100% ownership of the Common Securities,
provided that certain successors which are
17
permitted by the Indenture may succeed to the Guarantor's ownership of
the Common Securities, (ii) not to voluntarily terminate, wind-up or
liquidate the Issuer, except (a) in connection with a distribution of
the Debentures to the holders of the Preferred Securities in
liquidation of the Issuer or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration of Trust,
(iii) to use its reasonable efforts, consistent with the terms and
provisions of the Declaration of Trust, to cause the Issuer to remain
classified as a grantor trust for United States Federal income tax
purposes, (iv) for so long as Preferred Securities are outstanding, not
to convert Debentures except pursuant to a notice of conversion
delivered to the Conversion Agent (as defined in the Declaration of
Trust) by a Holder, [(v) to maintain the reservation for issuance of
the number of shares of Common Stock that would be required from time
to time upon the conversion of all the Debentures then outstanding,
(vi) to deliver shares of Common Stock upon an election by the Holders
to convert such Preferred Securities into Common Stock] and (vii) to
honor all obligations relating to the conversion or exchange of the
Preferred Securities into or for [Common Stock or] Debentures.
ARTICLE 7
TERMINATION
SECTION 7.1. TERMINATION. This Guarantee Agreement shall
terminate and be of no further force and effect upon the earliest of (i) full
payment of the Redemption Price of all Preferred Securities, (ii) the
distribution of Debentures to the Holders in exchange for all of the Preferred
Securities, (iii) full payment of the amounts payable in accordance with the
Declaration of Trust upon liquidation of the Issuer [or (iv) the distribution,
if any, of Common Stock to the holders of the Preferred Securities in respect of
the conversion of all such holders' Preferred Securities into Common Stock].
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to Preferred Securities or
this Guarantee Agreement.
ARTICLE 8
SUBORDINATION OF GUARANTEE
SECTION 8.1. GUARANTEE SUBORDINATE TO GUARANTOR SENIOR DEBT.
The Guarantor covenants and agrees, and each Holder, by its acceptance thereof,
likewise covenants and agrees, that the payment of the Guarantee Payments
pursuant to this Guarantee
18
Agreement are hereby expressly made subordinate and subject in right of payment
to the prior payment in full in cash of all amounts then due and payable in
respect of all Guarantor Senior Debt (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Guarantor Senior Debt and that no payment
of the Guarantee Payments pursuant to this Guarantee Agreement may be made
unless full payment of all amounts then due for principal, premium, if any, and
interest then due on all Guarantor Senior Debt by reason of the maturity thereof
(by lapse of time, acceleration or otherwise) has been made or duly provided for
in cash or in a manner satisfactory to the holders of such Guarantor Senior
Debt.
SECTION 8.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of the Guarantor's assets in connection with any
dissolution, winding-up, liquidation or reorganization of the Guarantor, whether
voluntary or involuntary, in bankruptcy, insolvency or receivership proceedings
(each such event, if any, herein sometimes referred to as a "Proceeding"), or
upon an assignment for the benefit of creditors or otherwise: (i) all Guarantor
Senior Debt (including without limitation all interest accruing on or after the
filing of any petition in bankruptcy relating to the Guarantor at the relevant
contractual rate, whether or not such claim for post-petition interest is
allowed in such Proceeding) must be paid in full in cash before the Holders are
entitled to any payments or distributions of any kind or character on account of
any Guarantee Payments pursuant to this Guarantee Agreement, and (ii) any
payment or distribution of the Guarantor's assets of any kind or character,
whether in cash, securities or other property, which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Guarantee Payments shall be paid or delivered directly to the holders of such
Guarantor Senior Debt (or their representative or trustee) in accordance with
the priorities then existing among such holders until all Guarantor Senior Debt
shall have been paid in full in cash before any payment or distribution is made
to the Holders.
In the event that, notwithstanding the subordination
provisions set forth herein, any payment or distribution of assets of any kind
or character is made at a time when the respective payment is not permitted to
be made as a result of the subordination provisions described above and before
all Guarantor Senior Debt is paid in full in cash, the Guarantee Trustee or the
Holders receiving such payment will be required to pay over such payment or
distribution to the holders of such Guarantor Senior Debt.
19
The consolidation of the Guarantor with, or the merger of the
Guarantor into, another Person or the liquidation or dissolution of the
Guarantor following the sale of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set forth
in Article 8 of the Indenture shall not be deemed a Proceeding for the purposes
of this Section if the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by sale such properties and
assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, or sale comply with the conditions set forth in Article
8.
SECTION 8.3. NO PAYMENT WHEN GUARANTOR SENIOR DEBT IN DEFAULT.
In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on, or any other amounts owing
with respect to, any Guarantor Senior Debt when the same becomes due and payable
or in the event any judicial proceeding shall be pending with respect to any
such default, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment or distribution of any kind or
character, whether in cash or properties shall be made by the Guarantor on
account of any Guarantee Payment.
The Guarantor shall give prompt written notice to the
Guarantee Trustee of any default in payment of principal of or interest on any
Guarantor Senior Debt; provided that no failure to give such a notice shall have
any effect whatsoever on the subordination provisions described herein.
In the event that, notwithstanding the foregoing, the
Guarantor shall make any payment to the Guarantee Trustee or any Holder
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known as set forth in
Section 8.6, to the Guarantee Trustee or, as the case may be, such Holder, then
and in such event such payment shall be paid over and delivered forthwith to the
Guarantor.
The provisions of this Section shall not apply to any payment
with respect to which Section 8.2 would be applicable.
SECTION 8.4. GUARANTEE TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder by his or her acceptance thereof authorizes and directs the
Guarantee Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Guarantee Trustee as his or her attorney-in-fact for
any and all such purposes.
20
SECTION 8.5. NO WAIVER OF SUBORDINATION PROVISIONS. No right
of any present or future holder of any Guarantor Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Guarantor or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Guarantor with the terms, provisions and covenants of this Guarantee
Agreement, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
SECTION 8.6. NOTICE TO GUARANTEE TRUSTEE. The Guarantor shall
give written notice as soon as commercially practicable to the Guarantee Trustee
of any fact actually known to the Guarantor which would prohibit the making of
any payment to or by the Guarantee Trustee in respect of the Guarantee Payment.
Notwithstanding the provisions of this Article or any other provision of this
Guarantee Agreement, the Guarantee Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Guarantee Trustee in respect of the Guarantee Payment, unless and
until the Guarantee Trustee shall have received written notice thereof from the
Guarantor or a person representing itself as a holder of Guarantor Senior Debt
or from any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true).
SECTION 8.7. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Guarantor
referred to in this Article, the Guarantee Trustee, subject to the provisions of
Article 3, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a Proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Guarantee Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Guarantor Senior Debt and other
indebtedness of the Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
SECTION 8.8. GUARANTEE TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
GUARANTOR SENIOR DEBT. With respect to the holders of the Guarantor Senior Debt,
the Guarantee Trustee undertakes to perform or observe only such of its
obligations and covenants as are set forth in this Article 8, and no implied
covenants or obligations with respect to the holders of such Guarantor Senior
Debt shall be read into this Guarantee Agreement against
21
[______________________________] and/or the Guarantee Trustee.
[______________________________] and/or the Guarantee Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Guarantor Senior Debt
and, subject to the provisions of Section 3.2, neither the Guarantee Trustee nor
[_____________________________] shall be liable to the holder of any Guarantor
Senior Debt if it shall pay over or deliver to Holders, the Guarantor, or any
other person, money or assets to which any holder of such Guarantor Senior Debt
shall be entitled by virtue of this Article 8 or otherwise.
SECTION 8.9. RIGHTS OF GUARANTEE TRUSTEE AS HOLDER OF
GUARANTOR SENIOR DEBT; PRESERVATION OF GUARANTEE TRUSTEE'S RIGHTS. The Guarantee
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article with respect to any Guarantor Senior Debt which may at any time
be held by it, to the same extent as any other holder of Guarantor Senior Debt,
and, subject to the requirements of the Trust Indenture Act, nothing in this
Guaranty Agreement shall deprive the Guarantee Trustee of any of its rights as
such holder.
SECTION 8.10. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purpose of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Debentures shall not be deemed to
constitute a payment or distribution on account of the principal of (or premium,
if any) or interest (including any Additional Interest) on the Debentures or on
account of the purchase or other acquisition of Debentures, and (b) the payment,
issuance or delivery of cash (including any payments for fractional shares),
property or securities (other than junior securities) upon conversion or
exchange of a Debenture shall be deemed to constitute payment on account of the
principal of such security. For the purpose of this Section, the term "junior
securities" means (i) shares of any stock of any class of the Guarantor and (ii)
securities of the Guarantor which are subordinated in right of payment to all
Guarantor Senior Debt which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater
extent than, the Debentures which are so subordinated as provided in this
Article.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor that
22
is permitted under Article 8 of the Indenture and pursuant to which the assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder.
SECTION 9.2. AMENDMENTS. Except with respect to any changes
which do not adversely affect the rights of the Holders in any material respect
(in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not less
than 66 2/3% in Liquidation Preference of the Securities. The provisions of
Article 6 of the Declaration of Trust concerning meetings of the Holders shall
apply to the giving of such approval. The Guarantor shall furnish the Guarantee
Trustee with an Officers' Certificate and an Opinion of Counsel to the effect
that any amendment of this Agreement is authorized and permitted.
SECTION 9.3. NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied or mailed
by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders:
Boise Cascade Corporation
1111 West Jefferson Street
P.O. Box 50
Boise, Idaho 83728-0001
Phone No.: (208) 384-6161
Facsimile No.: (208) 384-4912
Attention: General Counsel
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer
may give notice of to the Holders:
Boise Cascade Trust [__]
c/o Boise Cascade Corporation
1111 West Jefferson Street
P.O. Box 50
Boise, Idaho 83728-0001
Phone No.: (208) 384-6161
Facsimile No.: (208) 384-4912
Attention: General Counsel
23
with a copy to:
[------------------------------]
[-----------------------]
[-----------------------]
Phone No.: [______________]
Facsimile No.: [_____________]
Attention: Corporate Trust Services
(c) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4. BENEFIT. This Guarantee Agreement is solely for
the benefit of the Holders and is not separately transferable from the Preferred
Securities.
SECTION 9.5. INTERPRETATION. In this Guarantee Agreement,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
24
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 9.6. GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
25
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
BOISE CASCADE CORPORATION
By:
------------------------------
Name:
Title:
[---------------------------------]
as Guarantee Trustee
By: -------------------------------
Name:
Title:
EXHIBIT 5.1
March 24, 1999
Boise Cascade Corporation
1111 West Jefferson Street
P.O. Box 50
Boise, Idaho 83728-0001
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by Boise Cascade Corporation, a Delaware corporation
(the "Company") of such indeterminate number or amount of (i) shares of Common
Stock , par value $2.50 per share (the "Common Stock"); (ii) shares of Preferred
Stock, no par value (the "Preferred Stock"), which may be issued in the form of
depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts") issued against deposit of Preferred Stock pursuant
to a Deposit Agreement to be entered into between the Company and a bank or
trust company selected by the Company (the "Deposit Agreement"); (iii) debt
securities (the "Debt Securities"); (iv) warrants to purchase the Common Stock,
Preferred Stock, Debt Securities or any combination of the above (the
"Warrants"); (v) stock purchase contracts to purchase a number of shares of
Common Stock or Preferred Stock (the "Purchase Contracts"); (vi) stock purchase
units (the "Units") each of which may consist of a Purchase Contract and Debt
Securities, Preferred Securities or debt obligations of third parties, including
U.S. Treasury securities; (vii) the guarantee by the Company of any Preferred
Securities issued by each Trust pursuant to a Guarantee Agreement to be executed
by the Company (the "Guarantees"); and (viii) shares of Common Stock and
Preferred Stock as may be issued upon conversion of or exchange for any Debt
Securities, Preferred Stock or Preferred Securities that provide for conversion
or exchange into other securities, or pursuant to the Purchase Contracts (the
"Additional Shares") and the registration of shares of Preferred Securities (the
"Preferred Securities") of Boise Cascade Trusts I, Boise Cascade Trust II and
Boise Cascade Trust III (collectively, the "Trusts") by the Trusts (the Common
Stock, Preferred Stock, Debt Securities, the Warrants, the Purchase Contracts,
the Units, the Guarantees, the Additional Shares and the Preferred Securities
are herein collectively referred to as the "Offered Securities"), I, as your
counsel, have examined such corporate records, certificates and other documents,
and such questions of law, as I have considered necessary or appropriate for the
purposes of this opinion.
In connection with this opinion, I have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), relating to the Offered Securities (the "Registration Statement")
will have become effective under the Act; (ii) a Prospectus Supplement will have
been prepared and filed with the Commission describing the Offered Securities
offered thereby; (iii) all Offered Securities will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement and the appropriate Prospectus Supplement;
and (iv) a definitive purchase, underwriting, sales agency or similar agreement
with respect to the Offered Securities will have been duly authorized and
Boise Cascade Corporation
March 24, 1999
Page 2
validly executed and delivered by the Company and/or the Trusts and the other
parties thereto.
Upon the basis of such examination, I advise you that, in my opinion:
1. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the state of Delaware.
2. When (i) the Board of Directors of the Company or, to the extent
permitted by the General Corporation Law of the State of Delaware, a duly
constituted and acting committee thereof (such Board of Directors or committee
being referred to herein as the "Board") has taken all necessary corporate
action to approve the issuance of and the terms of the offering of the shares of
Common Stock and related matters; and (ii) the shares of Common Stock have been
duly executed, countersigned and delivered by the Corporation upon purchase
therefor and payment in full therefor as contemplated by the Registration
Statement such shares of Common Stock (including any Common Stock duly issued
(x) upon the exercise of any Warrants exercisable for Common Stock, (y) upon the
conversion or exchange of any Offered Securities convertible or exchangeable
into Common Stock, or (z) pursuant to Purchase Contracts) will be validly
issued, fully paid and nonassessable.
3. When (i) a certificate of designation with respect to the
Preferred Stock of a particular series has been duly filed with the Secretary of
State of the State of Delaware; (ii) the terms of the Preferred Stock of such
series and of its issuance and sale have been duly established in conformity
with the Company's certificate of incorporation so as not to violate any
applicable law or result in a default or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company;
and (iii) the Preferred Stock of such series has been duly issued and sold as
contemplated by the Registration Statement, the Preferred Stock of such series
will be validly issued, fully paid and nonassessable, and the Common Stock, when
duly issued in exchange for or upon conversion of the Preferred Stock of such
series will be validly issued, fully paid and nonassessable.
4. When (i) the Deposit Agreement has been duly authorized, executed
and delivered; (ii) the terms of the Depositary Shares and of their issue and
sale have been duly established in conformity with the Deposit Agreement so as
not to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company; and (iii) the Depositary Shares have been duly
executed and issued in accordance with the Deposit Agreement and issued and sold
as contemplated in the Registration Statement, the Depositary Shares will be
duly and validly issued and persons in whose names the Depositary Receipts
evidencing such Depositary Shares are registered will be entitled to the rights
specified therein and in the Deposit Agreement.
Boise Cascade Corporation
March 24, 1999
Page 3
5. When (i) the terms of the Debt Securities and of their issuance
and sale have been duly established in conformity with the applicable Indenture
so as not to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company; and (ii) the Debt Securities have been duly
executed and authenticated in accordance with the applicable Indenture and
issued and sold as contemplated in the Registration Statement, the Debt
Securities will constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
6. When (i) the Board has taken all necessary corporate action to
approve the creation of and the issuance and terms of the Warrants, the terms of
the offering thereof and related matters; (ii) the warrant agreement relating to
the Warrants has been duly authorized and validly executed and delivered by the
Company and the warrant agent appointed by the Company; and (iii) the Warrants
or certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the applicable
definitive purchase, underwriting, sales agency or similar agreement approved by
the Board upon payment of the consideration therefore provided for therein, the
Warrants will be duly authorized and validly issued.
7. When (i) a Purchase Contract Agreement relating to the Purchase
Contracts (the "Purchase Contract Agreement") and Purchase Contracts have been
duly authorized and validly executed and delivered by the parties thereto; and
(ii) the Purchase Contracts have been duly executed and issued in accordance
with the Purchase Contract Agreement relating to such Purchase Contracts, such
Purchase Contracts will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as such
enforcement is subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
8. When (i) the Units, Purchase Contract Agreements relating to the
Purchase Contracts comprising a part of the Units and such Purchase Contracts
have been duly authorized and validly executed and delivered by the parties
thereto; and (ii) the Purchase Contracts have been duly executed and issued in
accordance with the Purchase Contract Agreement relating to such Purchase
Contracts, such Units will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as such enforcement is subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
9. When (i) the Guarantees have been duly authorized and validly
executed and delivered by the parties thereto; (ii) the applicable Guarantee
Agreement has been validly executed and delivered; and (iii) the Preferred
Securities of the Trusts have been
Boise Cascade Corporation
March 24, 1999
Page 4
duly issued and delivered by the applicable Trust as contemplated by the
Registration Statement and any Prospectus Supplement relating thereto, the
Guarantees will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as such
enforcement is subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
The legality of the Preferred Securities to be issued by the Trusts
will be passed upon by Richards, Layton & Finger, P.A., special Delaware counsel
to the Trusts and the Company.
The foregoing opinion is limited to the Federal laws of the United
States and the General Corporation Law of the State of Delaware and I am
expressing no opinion as to the effect of the laws of any other jurisdiction.
I have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by me to be
responsible.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to me under the heading "Validity
of Offered Securities" in the Prospectus. In giving such consent, I do not
thereby admit that I am in the category of persons whose consent is required
under Section 7 of the Act.
Very truly yours,
/s/ John W. Holleran
- --------------------
John W. Holleran
EXHIBIT 5.2
[Richards, Layton & Finger letterhead]
March 24, 1999
Boise Cascade Corporation
1111 West Jefferson Street
Boise, Idaho 83728-0001
Re: BOISE CASCADE TRUST I-III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Boise Cascade
Corporation, a Delaware corporation (the "Company"), Boise Cascade Trust I, a
Delaware business trust ("Trust I"), Boise Cascade Trust II, a Delaware business
trust ("Trust II"), and Boise Cascade Trust III, a Delaware business trust
("Trust III") (Trust I, Trust II and Trust III are hereinafter collectively
referred to as the "Trusts" and sometimes hereinafter individually referred to
as a "Trust"), in connection with the matters set forth herein. At your request,
this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the
office of the Secretary of State of the State of Delaware (the "Secretary of
State") on May 21, 1998;
(b) The Certificate of Trust of Trust II, as filed with the
Secretary of State on March 23, 1999;
(c) The Certificate of Trust of Trust III, as filed with the
Secretary of State on March 23, 1999;
Boise Cascade Corporation
March 24, 1999
Page 2
(d) The Trust Agreement of Trust I, dated as of
May 21, 1998, as amended and restated by the Amended and Restated Declaration of
Trust, dated as of March 22, 1999 among the Company and the trustees named
therein;
(e) The Declaration of Trust of Trust II, dated as of
March 22, 1999 among the Company and the trustees named therein;
(f) The Declaration of Trust of Trust III, dated as of
March 22, 1999 among the Company and the trustees named therein;
(g) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus")
relating to the Preferred Securities of the Trusts representing preferred
undivided beneficial interests in the assets of the Trusts (each, a "Preferred
Security" and collectively, the "Preferred Securities"), filed by the Company
and the Trusts with the Securities and Exchange Commission;
(h) A form of Amended and Restated Declaration of Trust for
each of the Trusts, to be entered into between the Company, the trustees of the
Trust named therein, and the holders, from time to time, of the undivided
beneficial interests in the assets of such Trust (collectively, the "Declaration
of Trusts" and individually, a "Declaration of Trust"), attached as an exhibit
to the Registration Statement; and
(i) A Certificate of Good Standing for each of the Trusts,
dated March 24, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration of Trusts.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (i) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (i) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
Boise Cascade Corporation
March 24, 1999
Page 3
For purposes of this opinion, we have assumed (i) that each of
the Declaration of Trusts will constitute the entire agreement among the parties
thereto with respect to the subject matter thereof, including with respect to
the creation, operation and termination of the applicable Trust, and that the
Declaration of Trusts and the Certificates of Trust will be in full force and
effect and will not be amended, (ii) except to the extent provided in paragraph
1 below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trusts (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Declaration of Trusts and the Registration Statement, and (vii) that the
Preferred Securities are authenticated, issued and sold to the Preferred
Security Holders in accordance with the Declaration of Trusts and the
Registration Statement. We have not participated in the preparation of the
Registration Statement or the Prospectus and assume no responsibility for their
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly
existing in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent
valid and, subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable undivided beneficial interests in the assets of the
applicable Trust.
3. The Preferred Security Holders, as beneficial owners of
the applicable Trust, will be entitled to the same limitation of personal
liability extended to stockholders of
Boise Cascade Corporation
March 24, 1999
Page 4
private corporations for profit organized under the General Corporation Law of
the State of Delaware. We note that the Preferred Security Holders may be
obligated to make payments as set forth in the Declaration of Trust.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
EAM
EXHIBIT 12.2
BOISE CASCADE CORPORATION AND SUBSIDIARIES
Ratio of Earnings to Combined Fixed Charges and Preferred
Dividend Requirements
Year Ended December 31
----------------------------------------------------------
1994 1995 1996 1997 1998
--------- --------- --------- --------- ---------
(dollar amounts expressed in thousands)
Interest costs $ 169,170 $ 154,469 $ 146,234 $ 153,691 $ 174,541
Interest capitalized
during the period 1,630 3,549 17,778 10,575 1,341
Interest factor related to
noncapitalized leases(1) 9,161 8,600 12,982 11,931 11,308
Preferred stock dividend
requirements - pretax 81,876 59,850 65,207 44,686 19,940
--------- --------- --------- --------- ---------
Combined fixed charges
and preferred dividend
requirements $ 261,837 $ 226,468 $ 242,201 $ 220,883 $ 207,130
Income (loss) before
income taxes, minority
interest, and cumulative
effect of accounting change $ (64,750) $ 589,410 $ 31,340 $ (28,930) $ (21,278)
Undistributed (earnings)
losses of less than 50%
owned persons, net of
distributions received (1,110) (36,861) (1,290) 5,180 3,791
Combined fixed charges
and preferred dividend
requirements 261,837 226,468 242,201 220,883 207,130
Less: Interest capitalized (1,630) (3,549) (17,778) (10,575) (1,341)
Guarantee of interest
on ESOP debt (20,717) (19,339) (17,874) (16,341) (14,671)
--------- --------- --------- --------- ---------
Total earnings before
combined fixed charges
and preferred dividend
requirements $ 173,630 $ 756,129 $ 236,599 $ 170,217 $ 173,631
Ratio of earnings to
combined fixed charges
and preferred dividend
requirements -- 3.34 -- -- --
Excess of combined fixed
charges and preferred
dividend requirements
over earnings before
combined fixed charges
and preferred dividend
requirements $ 88,207 $ -- $ 5,602 $ 50,666 $ 33,499
(1) Interest expense for operating leases with terms of one year or longer is
based on an imputed interest rate for each lease.
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-----------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I.R.S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
-----------------
FOR INFORMATION, CONTACT:
Dennis Calabrese, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
-----------------
BOISE CASCADE CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 82-0100960
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification No.)
1111 West Jefferson Street 83728-0001
P.O. Box 50
Boise, Idaho
(Address of principal executive offices) (Zip Code)
-----------------
DEBT SECURITIES
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority
to which it is subject.
NAME ADDRESS
---- -------
Comptroller of the Currency Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association, incorporated herein by reference to Exhibit
1 of Form T-1, Registration No. 333-51961.
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association now known as
U.S. Bank Trust National Association, incorporated
herein by reference to Exhibit 2 of Form T-1,
Registration No. 33-83774.
Exhibit 3. Authorization to exercise corporate trust powers for
U.S. Bank Trust National Association, incorporated
herein by reference to Exhibit 3 of Form T-1,
Registration No. 333-51961.
Exhibit 4. By-Laws of U.S. Bank Trust National Association,
incorporated herein by reference to Exhibit 4 of Form
T-1, Registration No. 333-51961.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association
now known as U.S. Bank Trust National Association,
required by Section 321(b) of the Act, incorporated
herein by reference to Exhibit 6 of Form T-1,
Registration No. 33-83774.
Exhibit 7. Report of Condition of U.S. Bank Trust National
Association, as of the close of business on December 31,
1998, published pursuant to law or the requirements of
its supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9 Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, U.S. Bank Trust National Association, a national
banking association organized and existing under the laws of the United States,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 23rd day of March, 1999.
U.S. BANK TRUST
NATIONAL ASSOCIATION
By: /s/ Catherine F. Donohue
--------------------------
Catherine F. Donohue
Vice President
EXHIBIT 7
U.S. BANK TRUST NATIONAL ASSOCIATION
STATEMENT OF FINANCIAL CONDITION
AS OF 12/31/98
($000'S)
12/31/98
------------------
ASSETS
Cash and Due From Depository Institutions $42,823
Federal Reserve Stock 3,384
Fixed Assets 486
Intangible Assets 68,104
Other Assets 7,261
------------------
TOTAL ASSETS $122,058
LIABILITIES
Other Liabilities 9,462
------------------
TOTAL LIABILITIES 9,462
EQUITY
Common and Preferred Stock $ 1,000
Surplus 120,932
Undivided Profits (9,336)
------------------
TOTAL EQUITY CAPITAL $112,596
TOTAL LIABILITIES AND EQUITY CAPITAL $122,058
- -----------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ Catherine F. Donohue
---------------------------
Vice President
Date: March 23, 1999
