<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 19, 1997
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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UNITED COMPANIES FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
LOUISIANA
(State or other jurisdiction of incorporation or organization)
4041 ESSEN LANE
BATON ROUGE, LOUISIANA 70809
(504) 924-6007
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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71-0430414
(I.R.S. Employer Identification Number)
DALE E. REDMAN
CHIEF FINANCIAL OFFICER
4041 ESSEN LANE
BATON ROUGE, LOUISIANA 70809
(504) 924-6007
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
<TABLE>
<C> <C> <C>
REED D. AUERBACH, ESQ. LEE C. KANTROW, ESQ. PETER J. GORDON, ESQ.
STROOCK & STROOCK & LAVAN LLP KANTROW, SPAHT, WEAVER & BLITZER SIMPSON THACHER & BARTLETT
180 MAIDEN LANE (A PROFESSIONAL LAW CORPORATION) 425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10038-4982 POST OFFICE BOX 2997 NEW YORK, NEW YORK 10017-3909
BATON ROUGE, LOUISIANA 70821-2997
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF THE 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. [ ]
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, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
---------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
PROPOSED MAXIMUM
AGGREGATE OFFERING AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED PRICE(1) REGISTRATION FEE(2)
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
Debt Securities; Preferred Stock; Common Stock(3)(4)........ $500,000,000 $151,515.15
- ----------------------------------------------------------------------------------------------------------------
Depositary Shares(5)........................................ (6) 0
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</TABLE>
(1) Estimated solely for purposes of computing the registration fee.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any Debt Securities issued at a
discount.
(3) In addition to any Debt Securities and shares of Common Stock and Preferred
Stock that may be issued directly under this registration statement, there
are being registered hereunder an indeterminate amount of Debt Securities
and shares of Common Stock and Preferred Stock as may be issued upon
conversion or exchange of Debt Securities or Preferred Stock, as the case
may be. No separate consideration will be received for any Debt Securities
or shares of Common Stock or Preferred Stock so issued upon such conversion
or exchange.
(4) Includes Preferred Stock Purchase Rights ("Rights"). The Rights are
associated with and trade with the Common Stock. The value, if any,
attributable to the Rights is reflected in the market price of the Common
Stock.
(5) There are being registered hereunder an indeterminate number of Depositary
Shares to be evidenced by Depositary Receipts issued pursuant to a Deposit
Agreement. In the event that the Registrant elects to offer to the public
fractional interests in shares of the Preferred Stock registered hereunder,
Depositary Receipts will be distributed to those persons purchasing such
fractional interests and the underlying Preferred Stock will be issued to
the Depositary under the Deposit Agreement.
(6) No separate consideration will be received for the Depositary Shares.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION, DATED FEBRUARY 19, 1997
PROSPECTUS
UNITED COMPANIES FINANCIAL CORPORATION
DEBT SECURITIES, PREFERRED STOCK AND COMMON STOCK
United Companies Financial Corporation ("UCFC" or the "Company") may offer
from time to time, together or separately, (i) its unsecured debt securities,
which may be either senior (the "Senior Debt Securities") or subordinated (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), (ii) shares of its preferred stock, par value $2.00 per
share (the "Preferred Stock"), and (iii) shares of its common stock, par value
$2.00 per share (the "Common Stock") (the Debt Securities, the Preferred Stock
and the Common Stock are collectively referred to herein as the "Securities"),
in amounts, at prices and on terms to be determined at the time of the offering
thereof. The Debt Securities may be convertible or exchangeable into other
series of Debt Securities, shares of Preferred Stock or shares of the Common
Stock of the Company and the Preferred Stock may be convertible or exchangeable
into other series of Preferred Stock, Debt Securities or shares of the Common
Stock of the Company. The Securities offered pursuant to this Prospectus may be
issued in one or more series or issuances the aggregate offering price of which
will not exceed $500,000,000 (or the equivalent thereof if the Debt Securities
are denominated in one or more foreign currencies or foreign currency units).
The specific terms of the Securities in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in an accompanying
supplement to this Prospectus (each, a "Prospectus Supplement"), including,
where applicable (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking as Senior Debt Securities or Subordinated
Debt Securities, authorized denominations, maturity, any premium, rate or method
of calculation of interest, if any, and dates for payment thereof, any terms for
optional or mandatory redemption, any sinking fund provisions, any terms for
conversion or exchange into other series of Debt Securities, Preferred Stock or
Common Stock and any other special terms, and (ii) in the case of the Preferred
Stock, the specific designation, the aggregate number of shares offered, the
dividend rate (or method of calculation thereof), the dividend period and
dividend payment dates, whether such dividends will be cumulative or
noncumulative, the liquidation preference, voting rights, if any, any terms for
optional or mandatory redemption, any terms for conversion or exchange into
other series of Preferred Stock, Debt Securities or Common Stock and any other
special terms, and (iii) in the case of Common Stock, the aggregate number of
shares offered. If so specified in the applicable Prospectus Supplement, Debt
Securities of a series may be issued in whole or in part in the form of one or
more temporary or permanent global securities.
The Senior Debt Securities will rank equally with all other unsubordinated
and unsecured indebtedness of the Company. The Subordinated Debt Securities will
be subordinate in right of payment to all existing and future Senior
Indebtedness (as defined herein) of the Company.
The Securities may be sold (i) through underwriting syndicates represented
by managing underwriters, or by underwriters without a syndicate, with such
underwriters to be designated at the time of sale; (ii) through agents
designated from time to time; or (iii) directly by the Company. The names of any
underwriters or agents of UCFC involved in the sale of the Securities, the
public offering price or purchase price thereof, any applicable commissions or
discounts, any other terms of the offering of such Securities and the net
proceeds to the Company from such sale, will be set forth in the applicable
Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1997.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein
by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as amended by Amendments Nos. 1, 2 and 3 on Form 10-K/A;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996;
(c) The Company's Current Reports on Form 8-K filed on February 9,
1996, August 8, 1996, November 27, 1996, December 2, 1996, December 5, 1996
and December 19, 1996;
(d) The Company's Proxy Statement dated May 21, 1996 in connection
with the Company's Annual Meeting of Shareholders held on June 28, 1996;
(e) The description of the Company's Preferred Share Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed on
August 5, 1994; and
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on August 30, 1996.
All reports and any definitive proxy or information statements filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO DALE
E. REDMAN, CHIEF FINANCIAL OFFICER, UNITED COMPANIES FINANCIAL CORPORATION, 4041
ESSEN LANE, BATON ROUGE, LOUISIANA 70809. TELEPHONE REQUESTS MAY BE DIRECTED TO
MR. REDMAN AT (504) 924-6007.
AVAILABLE INFORMATION
UCFC is subject to the informational requirements of the Exchange Act and,
in accordance therewith, files reports, proxy statements and other information
with the Commission. Such reports, proxy statements and other information can be
inspected and copied at the following public reference facilities maintained by
the Commission: Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549; Seven World Trade Center, Suite 1300, New York, New York 10048; and
the Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material may also be obtained by mail from
the Public Reference Section of the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of prescribed
rates. The Commission maintains an Internet web site that contains reports,
proxy and information statements and other information regarding the registrants
that file electronically with the Commission, including the Company. The address
of such Internet web site is (http://www.sec.gov). In addition, reports, proxy
statements and other information concerning UCFC may be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission on Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act"). This
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<PAGE> 4
Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and
related exhibits for further information with respect to the Company and the
securities offered hereby. Statements contained herein concerning the provisions
of any document are not necessarily complete and, in each instance, reference is
made to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference. These documents may be inspected
without charge at the office of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and copies may be obtained at fees and
charges prescribed by the Commission.
3
<PAGE> 5
THE COMPANY
GENERAL
United Companies Financial Corporation (the "Company" or "UCFC"), founded
in 1946, is a financial services holding company engaged in consumer lending.
The Company's lending operations primarily are focused on the origination,
purchase, sale and servicing of first mortgage, non-conventional, home equity
loans which typically are not loans for the purchase of homes. These home equity
loans, which are fixed and variable rate mortgage loans, are made primarily to
individuals who may not otherwise qualify for conventional loans which are
readily marketable to government-sponsored mortgage agencies or conduits and
available through most commercial banks and many other lending institutions.
The Company's home equity loan originations are accomplished primarily
through the following distribution channels: (i) a retail branch network
conducted through United Companies Lending Corporation(R) ("UC Lending"), (ii) a
wholesale operation conducted through UNICOR MORTGAGE(R), Inc. and through
GINGER MAE(R), a division of UC Lending, each of which offer home equity loan
products, and (iii) a bulk loan purchase program conducted through Southern
Mortgage Acquisition, Inc., which from time to time purchases pools of home
equity loans from other lenders. In addition, the Company's lending operations
include manufactured housing loan products offered through its wholly owned
subsidiary, United Companies Funding, Inc. These manufactured housing contracts
are made primarily to finance the purchase of new or used manufactured homes and
typically are secured by a first lien security interest in the manufactured
homes. The Company also began offering in mid-1996 a secured credit card product
targeted to the Company's home equity loan customer base. These credit card
loans typically are secured by a second lien, behind the Company's first lien,
on the borrower's residence.
Loan production is funded principally through proceeds of loan facilities
pending loan sales. Substantially all of the loans originated or purchased by
the Company are sold in the secondary market principally through securitization
transactions.
The Company is incorporated in the State of Louisiana, its headquarters is
located at 4041 Essen Lane, Baton Rouge, Louisiana 70809, and its telephone
number is (504) 924-6007.
GOVERNMENT REGULATION AND LEGISLATION
The Company's lending operations are subject to extensive regulation,
supervision and licensing by federal and state authorities. Regulated matters
include, without limitation, maximum interest rates and fees which may be
charged by the Company, disclosure in connection with loan originations, credit
reporting requirements, servicing requirements, federal and state taxation, and
multiple qualification and licensing requirements for doing business in various
jurisdictions.
FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a "safe
harbor" for certain forward-looking statements. This Prospectus and any
accompanying Prospectus Supplement contain and incorporate by reference
forward-looking statements that reflect the Company's current views with respect
to future events and financial performance. These forward-looking statements are
subject to certain risks and uncertainties, including those identified below,
which could cause actual results to differ materially from historical results or
those anticipated. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of their dates. The Company
undertakes no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
The following non-exclusive factors could cause actual results to differ
materially from historical results or those anticipated: (1) changes in the
performance of the financial markets, in the demand for and market acceptance of
the Company's products, and in general economic conditions, including interest
rates; (2) the presence of competitors with greater financial resources and the
impact of competitive products and pricing; (3) the effect of the Company's
policies; and (4) the continued availability to the Company of adequate funding
sources.
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USE OF PROCEEDS
Except as may otherwise be set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of the Offered Securities will be
used for general corporate purposes.
RATIOS OF EARNINGS
The following tables set forth the ratio of earnings to fixed charges and
the ratio of earnings to combined fixed charges and preferred stock dividends
for the Company for the nine months ended September 30, 1996 and for each of the
years in the five-year period ended December 31, 1995.
The ratio of earnings to fixed charges has been computed by dividing
earnings by fixed charges. The ratio of earnings to combined fixed charges and
preferred stock dividends has been computed by dividing earnings by the sum of
fixed charges and preferred stock dividend requirements. Earnings consist of
income before income taxes plus fixed charges. Fixed charges consist of interest
on all indebtedness and the portion of rental expense considered to be
representative of interest.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS YEAR ENDED DECEMBER 31,
ENDED SEPTEMBER 30, --------------------------------
1996 1995 1994 1993 1992 1991
- ------------------- ---- ---- ---- ---- ----
<C> <C> <C> <C> <C> <C>
4.3x 4.7x 5.9x 4.6x 2.4x 1.4x
</TABLE>
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS*
<TABLE>
<CAPTION>
NINE MONTHS YEAR ENDED DECEMBER 31,
ENDED SEPTEMBER 30, --------------------------------
1996 1995 1994 1993 1992 1991
- ------------------- ---- ---- ---- ---- ----
<C> <C> <C> <C> <C> <C>
3.5x 4.0x 5.9x 4.4x 2.4x 1.4x
</TABLE>
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* The Company had no preferred stock outstanding other than for a portion of the
year ended December 31, 1993 and from and after June 16, 1995. The preferred
stock dividends declared during such period have been increased to an amount
representing the pre-tax earnings which would be required to cover such
dividends.
5
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DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
being offered (the "Offered Debt Securities"), any modifications of or additions
to the general terms and provisions of the Debt Securities as described herein
that may be applicable in the case of the Offered Debt Securities and any
applicable Federal income tax considerations will be described in the Prospectus
Supplement relating to the Offered Debt Securities. Accordingly, for a
description of the terms of the Offered Debt Securities, reference must be made
both to the Prospectus Supplement relating thereto and the description of Debt
Securities set forth in this Prospectus.
The Company primarily conducts its operations through its Subsidiaries. The
rights of the Company and its creditors, including the Holders of the Debt
Securities, to participate in the assets of any Subsidiary upon the latter's
liquidation or reorganization will be subject to the prior claims of the
Subsidiary's creditors except to the extent that the Company may itself be a
creditor with recognized claims against the Subsidiary.
The Senior Debt Securities are to be issued under an indenture dated as of
October 1, 1994, as supplemented from time to time (the "Senior Indenture"),
between the Company and The First National Bank of Chicago, as Trustee (the
"Senior Trustee"), and the Subordinated Debt Securities are to be issued under
an indenture dated as of February 19, 1997, as supplemented from time to time
(the "Subordinated Indenture"), between the Company and The Bank of New York, as
Trustee (the "Subordinated Trustee"). The term "Trustee" as used herein shall
refer to either the Senior Trustee or the Subordinated Trustee, as appropriate,
for Senior Debt Securities or Subordinated Debt Securities. The Senior Indenture
and the Subordinated Indenture (being referred to herein collectively as the
"Indentures" and individually as an "Indenture") are filed as exhibits to the
Registration Statement. The Indentures are subject to and governed by the Trust
Indenture Act of 1939, as amended (the "TIA"). The statements made under this
heading relating to the Debt Securities and the Indentures are summaries of the
provisions thereof, do not purport to be complete and are qualified in their
entirety by reference to the Indentures, including the definitions of certain
terms therein and in the TIA. Certain capitalized terms used below but not
defined herein have the meanings ascribed to them in the applicable Indenture.
Unless otherwise noted below, section references below are to both Indentures.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Company.
The indebtedness represented by the Senior Debt Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Company. The
indebtedness represented by the Subordinated Debt Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Indebtedness of the Company (including the Senior Debt Securities) as described
under "-- Subordination" below. The Debt Securities may be issued in one or more
series.
The accompanying Prospectus Supplement will set forth the terms of the
Offered Debt Securities, which may include the following:
(1) The title of the Offered Debt Securities and whether they are
Senior Debt Securities or Subordinated Debt Securities.
(2) The aggregate principal amount of the Offered Debt Securities and
any limit on the aggregate principal amount of the Offered Debt Securities.
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(3) The percentage of the principal amount at which the Offered Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of
acceleration of the Maturity thereof or the method by which such portion
shall be determined.
(4) The date or dates on which or periods during which the Offered
Debt Securities may be issued, and the date or dates, or the method by
which such date or dates will be determined, on which the principal of (and
premium, if any, on) the Offered Debt Securities will be payable.
(5) The rate or rates at which the Offered Debt Securities will bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest, if any, shall
accrue or the method by which such date or dates shall be determined, the
interest payment dates on which such interest will be payable and, if the
Offered Debt Securities are Registered Securities, the regular record
dates, if any, for the interest payable on such interest payment dates,
and, if the Offered Debt Securities are floating rate securities, the
notice, if any, to Holders regarding the determination of interest and the
manner of giving such notice.
(6) The place or places where the principal of (and premium, if any)
and interest on the Offered Debt Securities shall be payable; the extent to
which, or the manner in which, any interest payable on any Global Note (as
defined below) on an interest payment date will be paid, and the manner in
which any principal of, or premium, if any, on, any Global Note will be
paid.
(7) The obligation, if any, of the Company to redeem, repay or
purchase the Offered Debt Securities pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of the Holder thereof
and the period or periods within which, or the dates on which, the prices
at which and the terms and conditions upon which the Offered Debt
Securities shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation.
(8) The right, if any, of the Company to redeem the Offered Debt
Securities at its option and the period or periods within which, or the
date or dates on which, the price or prices at which, and the terms and
conditions upon which Offered Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company or otherwise.
(9) If the coin or currency in which the Offered Debt Securities
shall be issuable is U.S. dollars, the denominations of the Offered Debt
Securities if other than denominations of $1,000 and any integral multiple
thereof.
(10) Whether the Offered Debt Securities are to be issued as original
issue discount securities ("Discount Securities") and the amount of
discount at which such Offered Debt Securities may be issued and, if other
than the principal amount thereof, the portion of the principal amount of
Offered Debt Securities which shall be payable upon declaration of
acceleration of the Maturity thereof upon an Event of Default.
(11) Provisions, if any, for the defeasance of Offered Debt Securities
or certain of the Company's obligations with respect to the Offered Debt
Securities.
(12) Whether the Offered Debt Securities are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether any interest coupons appertaining thereto
("Coupons") will be attached thereto, whether such Bearer Securities may be
exchanged for Registered Securities and the circumstances under which, and
the place or places at which, any such exchanges, if permitted, may be
made.
(13) Whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if any of the Offered Debt Securities are to be issued as
Bearer Securities, the applicable procedures and certificates relating to
the exchange of temporary Global Notes for definitive Bearer Securities.
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<PAGE> 9
(14) If other than U.S. dollars, the currency, currencies or currency
units (the term "currency" as used herein will include currency units) in
which the Offered Debt Securities shall be denominated or in which payment
of the principal of (and premium, if any) and interest on the Offered Debt
Securities may be made, and particular provisions applicable thereto and,
if applicable, the amount of Offered Debt Securities which entitles the
Holder of an Offered Debt Security or its proxy to one vote for purposes of
voting at a meeting of Holders of the Offered Debt Securities.
(15) If the principal of (and premium, if any) or interest on the
Offered Debt Securities is to be payable, at the election of the Company or
a Holder thereof, in a currency other than that in which the Debt
Securities is denominated or payable without such election, in addition to
or in lieu of the applicable provisions of the Indentures, the period or
periods within which and the terms and conditions upon which, such election
may be made and the time and the manner of determining the exchange rate or
rates between the currency or currencies in which the Offered Debt
Securities are denominated or payable without such election and the
currency or currencies in which the Offered Debt Securities are to be paid
if such election is made.
(16) The date as of which any Offered Debt Securities shall be dated.
(17) If the amount of payments of principal of (and premium, if any)
or interest on the Offered Debt Securities may be determined with reference
to an index, including, but not limited to, an index based on a currency or
currencies other than that in which the Offered Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined.
(18) If the Offered Debt Securities are denominated or payable in
foreign currency, any other terms concerning the payment of principal of
(and premium, if any) or any interest on the Offered Debt Securities
(including the currency or currencies of payment thereof).
(19) The designation of the original Currency Determination Agent, if
any.
(20) The applicable Overdue Rate, if any.
(21) If the Offered Debt Securities do not bear interest, the
applicable dates upon which the Company will furnish or cause to be
furnished to the Trustee a list of the names and addresses of the
Registered Holders of the Offered Debt Securities.
(22) Any addition to, or modification or deletion of, any Events of
Default or covenants provided for in the applicable Indenture with respect
to the Offered Debt Securities.
(23) If any of the Offered Debt Securities are to be issued as Bearer
Securities, (x) whether interest in respect of any portion of a temporary
Offered Debt Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of any interest payment
date prior to the exchange of such temporary Offered Debt Security for
definitive Offered Debt Securities shall be paid to any clearing
organization with respect to the portion of such temporary Offered Debt
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such interest payment date, (y) the terms
upon which interests in such temporary Offered Debt Security in global form
may be exchanged for interests in a permanent Global Note or for definitive
Offered Debt Securities and the terms upon which interests in a permanent
Global Note, if any, may be exchanged for definitive Offered Debt
Securities and (z) the cities in which the Authorized Newspapers designated
for the purposes of giving notices to Holders are published.
(24) Whether the Offered Debt Securities shall be issued in whole or
in part in the form of one or more Global Notes and, in such case, the
depositary or any common depositary for such Global Notes; and if the
Offered Debt Securities are issuable only as Registered Securities, the
manner in which and the circumstances under which Global Notes representing
Offered Debt Securities may be exchanged for Registered Securities in
definitive form.
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(25) The designation, if any, of any depositaries, trustees (other
than the applicable Trustee), paying agents, authenticating agents,
security registrars (other than the applicable Trustee) or other agents
with respect to the Offered Debt Securities.
(26) If the Offered Debt Securities are to be issuable in definitive
form only upon receipt of certain certificates or other documents or upon
satisfaction of certain conditions, the form and terms of such
certificates, documents or conditions.
(27) If the Offered Debt Securities are Subordinated Debt Securities,
whether they will be convertible or exchangeable into shares of Common
Stock and, if so, the terms and conditions, which may be in addition to or
in lieu of the provisions contained in the Subordinated Indenture, upon
which such Offered Debt Securities will be so convertible or exchangeable,
including the conversion or exchange price and the conversion or exchange
period.
(28) Any other terms of the Offered Debt Securities not specified in
the Indenture under which such Offered Debt Securities are to be issued
(which other terms shall not be inconsistent with the provisions of such
Indenture).
Each Indenture provides that the aggregate principal amount of Debt
Securities that may be issued thereunder is unlimited. The Debt Securities may
be issued in one or more series thereunder, in each case as authorized from time
to time by the Board of Directors of the Company, or any committee thereof or
any duly authorized officer or pursuant to any modification of an Indenture.
(Section 3.01)
In the event that Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such Discount
Securities will be described in the Prospectus Supplement relating thereto.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company or its Subsidiaries to incur indebtedness
or that would afford holders of Debt Securities protection in the event of a
highly leveraged or similar transaction involving the Company or its
Subsidiaries. Reference is made to the accompanying Prospectus Supplement for
information with respect to any deletions from, modifications of or additions,
if any, to the Events of Default or covenants of the Company described below
that are applicable to the Offered Debt Securities, including any addition of
covenants or other provisions providing event risk or similar protection.
All of the Debt Securities of a series need not be issued at the same time,
and may vary as to denomination, interest rate, maturity and other provisions
and unless otherwise provided, a series may be reopened for issuance of
additional Debt Securities of such series. (Section 3.01)
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless specified in the Prospectus Supplement, the Debt Securities of any
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in U.S.
dollars. (Section 3.02) The Indentures also provide that Debt Securities of a
series may be issuable in global form. See "-- Book-Entry Debt Securities."
Unless otherwise indicated in the Prospectus Supplement, Bearer Securities
(other than in global form) will have Coupons attached. (Section 2.01)
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of like aggregate principal amount and
of like Stated Maturity and with like terms and conditions. If so specified in
the Prospectus Supplement, at the option of the Holder thereof, to the extent
permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions, upon surrender of such Bearer
Security at the corporate trust office of the applicable Trustee or at any other
office or agency of the Company designated for the purpose of making any such
exchanges. Subject to certain exceptions, any Bearer Security issued with
Coupons surrendered for exchange must be surrendered with all unmatured Coupons
and any matured Coupons in default attached thereto. (Section 3.05)
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Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange. (Section 3.05)
Except as otherwise specified in the Prospectus Supplement, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer Securities. (Section 3.05)
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall deliver, in the name of the designated transferee, one or more
new Registered Securities of the same series of like aggregate principal amount
of such denominations as are authorized for Registered Securities of such series
and of a like Stated Maturity and with like terms and conditions. No service
charge will be made for any transfer or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section 3.05)
The Company shall not be required (i) to register, transfer or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of redemption of
Debt Securities of such series selected for redemption and ending at the close
of business on the day of such transmission, or (ii) to register, transfer or
exchange any Debt Security so selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
(Section 3.05)
EVENTS OF DEFAULT
Under the Indentures, "Event of Default" with respect to the Debt
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, 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 Debt
Security or any payment with respect to the Coupons, if any, of such series when
it becomes due and payable, and continuance of such default for a period of 30
days; (2) default in the payment of the principal of (and premium, if any, on)
any Debt Security of such series at its Maturity; (3) default in the deposit of
any sinking fund payment, when and as due by the terms of a Debt Security of
such series; (4) default in the performance, or breach of any covenant or
warranty in the applicable Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in the applicable
Indenture specifically dealt with or which expressly has been included in the
applicable Indenture solely for the benefit of Debt Securities of a series other
than such series), and continuance of such default or breach for a period of 60
days after there has been given to the Company by the applicable Trustee or to
the Company and the applicable Trustee by the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be remedied; (5)
certain events of bankruptcy, insolvency or reorganization with respect to the
Company; or (6) any other Event of Default provided with respect to Debt
Securities of that series pursuant to the applicable Indenture. (Section 5.01)
Each Indenture requires the Company to file with the applicable Trustee,
annually, an officers' certificate as to the Company's compliance with all
conditions and covenants under the applicable Indenture. (Section 12.02) Each
Indenture provides that the applicable Trustee may withhold notice to the
Holders of a series of Debt Securities of any default (except payment defaults
on such Debt Securities) if it considers such withholding to be in the interest
of the Holders of such series of Debt Securities to do so. (Section 6.02)
If an Event of Default with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, then in every case the applicable
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of the Debt Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
applicable Trustee if given by
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Holders), and upon any such declaration such principal amount (or specified
amount), plus accrued and unpaid interest (and premium, if any) shall become
immediately due and payable. Upon payment of such amount in the currency in
which such Debt Securities are denominated (except as otherwise provided in the
applicable Indenture or specified in the Prospectus Supplement), all obligations
of the Company in respect of the payment of principal of the Debt Securities of
such series shall terminate. (Section 5.02)
Subject to the provisions of each Indenture relating to the duties of the
applicable Trustee, in case an Event of Default with respect to Debt Securities
of a particular series shall occur and be continuing, the applicable Trustee
shall be under no obligation to exercise any of its rights or powers under such
Indenture at the request, order or direction of any of the Holders of Debt
Securities of that series, unless such Holders shall have offered to the
applicable Trustee reasonable indemnity against the expenses and liabilities
which might be incurred by it in compliance with such request. (Section 5.07)
Subject to such provisions for the indemnification of the applicable Trustee,
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the applicable Trustee
under such Indenture, or exercising any trust or power conferred on the
applicable Trustee with respect to the Debt Securities of that series provided
that such direction does not conflict with law or with the applicable Indenture.
(Section 5.12)
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the applicable Trustee as provided
in the applicable Indenture, the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series, by written notice to the Company
and the applicable Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the applicable
Trustee a sum in the currency in which such Debt Securities are denominated
(except as otherwise provided in the applicable Indenture or specified in the
Prospectus Supplement) sufficient to pay (A) all overdue installments of
interest on all Debt Securities or all overdue payments with respect to any
Coupons of such series, (B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates prescribed
therefor in such Debt Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue installments of interest on each Debt
Security of such series or upon overdue payments on any Coupons of such series
at a rate established for such series, and (D) all sums paid or advanced by the
applicable Trustee and the reasonable compensation, expenses, disbursements and
advances of the applicable Trustee, its agents and counsel; and (2) all Events
of Default with respect to Debt Securities of such series, other than the
nonpayment of the principal of Debt Securities of such series which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in the applicable Indenture. No such rescission and waiver will affect
any subsequent default or impair any right consequent thereon. (Section 5.02)
MODIFICATION OR WAIVER
Without prior notice to or consent of any Holders, the Company and the
applicable Trustee, at any time and from time to time, may modify the applicable
Indenture for any of the following purposes: (1) to evidence the succession of
another corporation to the rights of the Company and the assumption by such
successor of the covenants and obligations of the Company in the applicable
Indenture and in the Debt Securities and Coupons, if any, issued thereunder; (2)
to add to the covenants of the Company for the benefit of the Holders of all or
any series of Debt Securities and the Coupons, if any, appertaining thereto (and
if such covenants are to be for the benefit of less than all series, stating
that such covenants are expressly being included solely for the benefit of such
series), or to surrender any right or power conferred in the applicable
Indenture upon the Company; (3) to add any additional Events of Default (and if
such Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be applicable
to such series); (4) to add or change any of the provisions of the applicable
Indenture to such extent as shall be necessary to permit or facilitate the
issuance thereunder of Debt Securities of any series in bearer form, registrable
or not registrable, and with or without Coupons, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer Securities to
be issued in exchange for Bearer Securities of other authorized denominations or
to permit the issuance of Debt Securities of any series in uncertificated
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form, provided that any such action shall not adversely affect the interests of
the Holders of Debt Securities of any series or any related Coupons in any
material respect; (5) to change or eliminate any of the provisions of the
applicable Indenture, provided that any such change or elimination will become
effective only when there is no Outstanding Debt Security issued thereunder or
Coupon of any series created prior to such modification which is entitled to the
benefit of such provision and as to which such modification would apply; (6) to
secure the Debt Securities issued thereunder; (7) to supplement any of the
provisions of the applicable Indenture to such extent as is necessary to permit
or facilitate the defeasance and discharge of any series of Debt Securities,
provided that any such action will not adversely affect the interests of the
Holders of Debt Securities of such series or any other series of Debt Securities
issued under such Indenture or any related Coupons in any material respect; (8)
to establish the form or terms of Debt Securities and Coupons, if any, as
permitted by the applicable Indenture; (9) to evidence and provide for the
acceptance of appointment thereunder by a successor Trustee with respect to one
or more series of Debt Securities and to add to or change any of the provisions
of the applicable Indenture as is necessary to provide for or facilitate the
administration of the trusts thereunder by more than one Trustee; or (10) to
cure any ambiguity, to correct or supplement any provision in the applicable
Indenture which may be defective or inconsistent with any other provision
therein, to eliminate any conflict between the terms of the applicable Indenture
and the Debt Securities issued thereunder and the TIA or to make any other
provisions with respect to matters or questions arising under the applicable
Indenture which will not be inconsistent with any provision of the applicable
Indenture; provided such other provisions shall not adversely affect the
interests of the Holders of Outstanding Debt Securities or Coupons, if any, of
any series created thereunder prior to such modification in any material
respect. (Section 11.01)
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such modification voting separately, the Company and the applicable Trustee may
modify the applicable Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the applicable
Indenture or of modifying in any manner the rights of the Holders of Debt
Securities and Coupons, if any, under the applicable Indenture; provided,
however, that no such modification may, without the consent of the Holder of
each Outstanding Debt Security of each such series affected thereby (1) change
the Stated Maturity of the principal of, or any installment of interest on, any
Debt Security, or reduce the principal amount thereof or the interest thereon or
any premium payable upon redemption thereof, or change the Stated Maturity of or
reduce the amount of any payment to be made with respect to any Coupon, or
change the currency or currencies in which the principal of (and premium, if
any) or interest on such Debt Security is denominated or payable, or reduce the
amount of the principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof, or adversely affect
the right of repayment or repurchase, if any, at the option of the Holder, or
reduce the amount of, or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Debt Security, or impair the right
to institute suit for the enforcement of any payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or limit the obligation of the Company to maintain a paying agency
outside the United States for payments on Bearer Securities, or adversely affect
the right to convert any Subordinated Debt Security into shares of Common Stock
as may be set forth in the Prospectus Supplement; (2) reduce the percentage in
principal amount of the Outstanding Debt Securities of any series, the consent
of whose Holders is required for any such modification, or the consent of whose
Holders is required for any waiver of compliance with certain provisions of the
applicable Indenture or certain defaults or Events of Default thereunder and
their consequences provided for in such Indenture; (3) modify any of the
provisions of the applicable Indenture relating to modifications and waivers of
defaults and covenants, except to increase any such percentage or to provide
that certain other provisions of the applicable Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt Security of
each series affected thereby; provided, however, that certain of such
modifications may be made without the consent of any Holder of any Debt
Security; or (4) in the case of the Subordinated Indenture, modify any of the
provisions relating to the subordination of the Subordinated Debt Securities in
a manner adverse to the Holders thereof. (Section 11.02)
A modification which changes or eliminates any covenant or other provision
of the applicable Indenture with respect to one or more particular series of
Debt Securities and Coupons, if any, or which modifies the rights of the Holders
of Debt Securities and Coupons of such series with respect to such covenant or
other
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provision, shall be deemed not to affect the rights under the applicable
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series. (Section 11.02)
In the case of the Subordinated Indenture, no modification may adversely
affect the rights of any holder of Senior Indebtedness under the subordination
provisions of the Subordinated Indenture without the consent of such holder.
(Section 11.08 of the Subordinated Indenture)
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive, by notice to the applicable
Trustee and the Company, any past default or Event of Default under the
applicable Indenture 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 Debt Security of such series, or in the payment of any sinking fund
installment or analogous obligation with respect to the Debt Securities of such
series, or (2) in respect of a covenant or provision hereof which pursuant to
the second paragraph under "-- Modification or Waiver" cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
such series affected. Upon any such waiver, such default will cease to exist,
and any Event of Default arising therefrom will be deemed to have been cured,
for every purpose of the Debt Securities of such series under the applicable
Indenture, but no such waiver will extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. (Section 5.13)
The Company may omit in any particular instance to comply with certain
covenants in the applicable Indenture (including, if so specified in the
Prospectus Supplement, any covenant not set forth in the applicable Indenture
but specified in the Prospectus Supplement to be applicable to the Debt
Securities of any series issued thereunder, except as otherwise specified in the
Prospectus Supplement, and including the covenants relating to the maintenance
by the Company of its existence, rights and franchises), if before the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Debt Securities of such series either waive such compliance in such
instance or generally waive compliance with such provisions, but no such waiver
may extend to or affect any term, provision or condition except to the extent
expressly so waived, and, until such waiver becomes effective, the obligations
of the Company and the duties of the applicable Trustee in respect of any such
provision will remain in full force and effect. (Section 12.09 of the Senior
Indenture; Section 12.07 of the Subordinated Indenture)
SUBORDINATION
Upon any distribution of assets of the Company upon the dissolution,
winding up, liquidation or reorganization of the Company, the payment of the
principal of (and premium, if any) and interest on the Subordinated Debt
Securities will be subordinated to the extent provided in the Subordinated
Indenture in right of payment to the prior payment in full of all Senior
Indebtedness, including Senior Debt Securities (Sections 16.01 and 16.02 of the
Subordinated Indenture), but the obligation of the Company to make payment of
principal (and premium, if any) or interest on the Subordinated Debt Securities
will not otherwise be affected. (Section 16.02 of the Subordinated Indenture) No
payment on account of principal (or premium, if any), sinking funds or interest
may be made on the Subordinated Debt Securities (including, without limitation,
payment of any Coupons) unless full payment of amounts then due for principal,
premium, if any, sinking funds and interest on Senior Indebtedness has been made
or duly provided for. (Section 16.03 of the Subordinated Indenture) In the event
that, notwithstanding the foregoing, any payment by the Company described in the
foregoing sentence is received by the Trustee under the Subordinated Indenture,
any Paying Agent or the Holders of any of the Subordinated Debt Securities
before all Senior Indebtedness is paid in full, such payment or distribution
shall be paid over to the holders of such Senior Indebtedness or on their behalf
for application to the payment of all such Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness. Subject to payment in full of Senior Indebtedness, the Holders of
the Subordinated Debt Securities will be subrogated to the rights of the holders
of the Senior Indebtedness to the extent of payments made to the holders of such
Senior Indebtedness out of the distributive share of the Subordinated Debt
Securities. (Section 16.02 of the Subordinated Indenture)
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By reason of such subordination, in the event of a distribution of assets
upon insolvency, certain general creditors of the Company may recover more,
ratably, than Holders of the Subordinated Debt Securities. The Subordinated
Indenture provides that the subordination provisions thereof shall not apply to
money and securities held in trust pursuant to the satisfaction and discharge
and the legal defeasance provisions of the Subordinated Indenture. (Sections
4.02 and 15.02 of the Subordinated Indenture)
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the accompanying Prospectus Supplement
or the information incorporated by reference therein will set forth the
approximate amount of Senior Indebtedness outstanding as of a recent date.
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The applicable Indenture with respect to the Debt Securities of any series
may be discharged, subject to certain terms and conditions, when (1) either (A)
all Debt Securities and the Coupons, if any, of such series have been delivered
to the applicable Trustee for cancellation, or (B) all Debt Securities and the
Coupons, if any, of such series not theretofore delivered to the applicable
Trustee for cancellation (i) have become due and payable, (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 applicable
Trustee for the giving of notice by the applicable Trustee, and the Company, in
the case of (i), (ii) or (iii) of subclause (B), has irrevocably deposited or
caused to be deposited with the applicable Trustee as trust funds in trust for
such purpose an amount in the currency in which such Debt Securities are
denominated sufficient to pay and discharge the entire indebtedness on such Debt
Securities for principal (and premium, if any) and interest to the date of such
deposit (in the case of Debt Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be; provided, however,
in the event a petition for relief under the applicable Federal or state
bankruptcy, insolvency or other similar law is filed with respect to the Company
within 91 days after the deposit and the applicable Trustee is required to
return the deposited money to the Company, the obligations of the Company under
the applicable Indenture with respect to such Debt Securities will not be deemed
terminated or discharged; (2) the Company has paid or caused to be paid all
other sums payable under the applicable Indenture by the Company; (3) the
Company has delivered to the applicable Trustee an officers' certificate and an
opinion of counsel each stating that all conditions precedent therein provided
relating to the satisfaction and discharge of the applicable Indenture with
respect to such series have been complied with; and (4) the Company has
delivered to the applicable Trustee an opinion of counsel or a ruling of the
Internal Revenue Service to the effect that such deposit and discharge will not
cause the Holders of the Debt Securities of the series to recognize income, gain
or loss for Federal income tax purposes. (Section 4.01)
If provision is made for the defeasance of Debt Securities of a series, and
if the Debt Securities of such series are Registered Securities and denominated
and payable only in U.S. dollars, then the provisions of each Indenture relating
to defeasance shall be applicable except as otherwise specified in the
Prospectus Supplement for Debt Securities of such series. Defeasance provisions,
if any, for Debt Securities denominated in a foreign currency or currencies or
for Bearer Securities may be specified in the Prospectus Supplement. (Section
15.01)
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Debt
Securities of any series (including, in the case of Subordinated Debt
Securities, the provisions described under "-- Subordination" herein) ("legal
defeasance option") or (b) the Company shall cease to be under any obligation to
comply with any obligation of the Company in the applicable Indenture including
any restrictive covenants described in the accompanying Prospectus Supplement
and any other covenants applicable to the Debt Securities which are subject to
covenant defeasance (including, in the case of Subordinated Debt Securities, the
provisions described under "-- Subordination" herein) ("covenant defeasance
option") at any time after the applicable conditions set forth below have been
satisfied: (1) the Company shall have deposited or caused to be deposited
irrevocably with the applicable Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
the Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations which through the payment of interest and principal in
respect thereof in
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accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the applicable Trustee, to pay and discharge
each installment of principal (including any mandatory sinking fund payments) of
(and premium, if any) and interest on, the Outstanding Debt Securities of such
series on the dates such installments of interest or principal and premium are
due; (2) such deposit shall not cause the applicable Trustee with respect to the
Debt Securities of that series to have a conflicting interest with respect to
the Debt Securities of any series; (3) such deposit will not result in a breach
or violation of, or constitute a default under, the applicable Indenture or any
other agreement or instrument to which the Company is a party or by which it is
bound; (4) if the Debt Securities of such series are then listed on any national
securities exchange, the Company shall have delivered to the applicable Trustee
an opinion of counsel or a letter or other document from such exchange to the
effect that the Company's exercise of its legal defeasance option or the
covenant defeasance option, as the case may be, would not cause such Debt
Securities to be delisted; (5) no Event of Default or event (including such
deposit) which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have occurred
and be continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under the provisions of the
applicable Indenture relating to certain events of bankruptcy or insolvency or
event which with the giving of notice or lapse of time, or both, would become an
Event of Default under such bankruptcy or insolvency provisions shall have
occurred and be continuing on the 91st day after such date; and (6) certain
other opinions, officers' certificates and other documents specified in the
applicable Indenture, including an opinion of counsel or a ruling of the
Internal Revenue Service to the effect that such deposit, defeasance or
Discharge will not cause the Holders of the Debt Securities of such series to
recognize income, gain or loss for Federal income tax purposes. Notwithstanding
the foregoing, if the Company exercises its covenant defeasance option and an
Event of Default under the provisions of the Indentures relating to certain
events of bankruptcy or insolvency or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under such bankruptcy
or insolvency provisions shall have occurred and be continuing on the 91st day
after the date of such deposit, the obligations of the Company referred to under
the definition of covenant defeasance option with respect to such Debt
Securities shall be reinstated in full. (Section 15.02)
PAYMENT AND PAYING AGENTS
If Debt Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Debt Securities of that series may be presented or surrendered for
payment, where Debt 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 Debt Securities of that series and the applicable
Indenture may be served. (Section 12.03)
If Debt Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in the Borough of Manhattan, The City and State of New
York, an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Debt Securities of
that series may be surrendered for exchange or redemption, where Debt Securities
of that series that are convertible may be surrendered for conversion, where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and the applicable Indenture may be served and where Bearer
Securities of that series and related Coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Debt Securities of that series and related Coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Debt Securities of that series, if so provided in such
series); provided, however, that if the Debt Securities of that series are
listed on the London Stock Exchange, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Debt Securities of
that series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Debt Securities of that
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series are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Debt Securities of that
series may be surrendered for exchange or redemption, where Debt Securities of
that series that are convertible may be surrendered for conversion and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and the applicable Indenture may be served. The Company will give
prompt written notice to the applicable Trustee of the locations, and any change
in the locations, of such offices or agencies. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
applicable Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the corporate trust office of the
applicable Trustee, except that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment at the offices specified in
the applicable Debt Security and the Company has appointed the applicable
Trustee (or in the case of Bearer Securities may appoint such other agent as may
be specified in the applicable Prospectus Supplement) as its agent to receive
all presentations, surrenders, notices and demands. (Section 12.03)
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Debt Securities of a series are denominated and payable in U.S. dollars,
payment of principal of and any premium and interest on Bearer Securities of
such series, if specified in the applicable Prospectus Supplement, shall be made
at the office of the applicable Trustee or the Company's Paying Agent in the
Borough of Manhattan, the City and State of New York, if (but only if) payment
in U.S. dollars of the full amount of such principal, premium, interest or
additional amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with the
applicable Indenture is illegal or effectively precluded by exchange controls or
other similar restrictions. (Section 12.03)
BOOK-ENTRY DEBT SECURITIES
The Depository Trust Company. The Debt Securities of a series may be issued
in whole or in part in global form that will be deposited with, or on behalf of,
a depositary identified in the Prospectus Supplement. Global Notes may be issued
in either registered or bearer form and in either temporary or permanent form
(each a "Global Note"). Payments of principal of (and premium, if any) and
interest on Debt Securities represented by a Global Note will be made by the
Company to the applicable Trustee and then by such Trustee to the depositary.
If specified in the applicable Prospectus Supplement, any Global Notes will
be deposited with, or on behalf of, The Depository Trust Company, New York, New
York ("DTC"), as depositary, or such other depositary as may be specified in the
applicable Prospectus Supplement. In the event that DTC acts as depositary with
respect to any Global Notes, the Company anticipates that such Global Notes will
be registered in the name of DTC's nominee, and that the following provisions
will apply to the depositary arrangements with respect to any such Global Notes.
Additional or differing terms of the depositary arrangements, if any, applicable
to the Offered Debt Securities, will be described in the accompanying Prospectus
Supplement.
So long as DTC or its nominee is the registered owner of a Global Note, DTC
or its nominee, as the case may be, will be considered the sole Holder of the
Debt Securities represented by such Global Note for all purposes under the
applicable Indenture. Except as provided below, owners of beneficial interests
in a Global Note will not be entitled to have Debt Securities represented by
such Global Note registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities in certificated form and will not
be considered the owners or Holders thereof under the applicable Indenture. The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in certificated form; accordingly, such laws may
limit the transferability of beneficial interests in a Global Note.
If DTC is at any time unwilling or unable to continue as depositary and a
successor depositary is not appointed by the Company within 90 days, the Company
will issue individual Debt Securities in certificated
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form in exchange for the Global Notes. In addition, the Company may at any time,
and in its sole discretion, determine not to have any Debt Securities
represented by one or more Global Notes and, in such event, will issue
individual Debt Securities in certificated form in exchange for the relevant
Global Notes. If Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will issue individual Debt Securities in certificated form in exchange
for the relevant Global Notes. (Section 3.04)
The Prospectus Supplement related to a given series will specify whether
the holders of the Debt Securities may hold their securities through DTC if they
are participants of DTC, or indirectly through organizations that are
participants in DTC.
The following is based on information furnished by DTC:
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, 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 Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
Inc., the American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks, and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its Participants are on file with the Commission.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt Securities
on DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in Debt Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Debt
Securities, except in the event that use of the book entry system for the Debt
Securities is discontinued.
To facilitate subsequent transfers, the Debt Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of the Debt Securities with DTC and their registration in
the name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Debt Securities; DTC records
reflect only the identity of the Direct Participants to whose accounts Debt
Securities are credited, which may or may not be the Beneficial Owners. The
Participants remain responsible for keeping account of their holdings on behalf
of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners are governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to
whose
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accounts the Debt Securities are credited on the record date (identified on a
list attached to the Omnibus Proxy).
Principal and interest payments on the Debt Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Paying Agent or the
Company, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal and interest to DTC is the
responsibility of the Company or the Paying Agent, disbursement of such payments
to Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to the Debt Securities at any time by giving reasonable notice to the
Company or the Paying Agent. Under such circumstances, in the event that a
successor securities depositary is not appointed, Debt Security certificates are
required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the applicable Prospectus Supplement, the
underwriters or agents with respect to a series of Debt Securities issued as
Global Notes will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the applicable Trustee or
any applicable Paying Agent will have the responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
interests in a Global Note, or for maintaining, supervising or reviewing any
records relating to such beneficial interests.
Cedel Bank and Euroclear. If so specified in the applicable Prospectus
Supplement, Debt Securities of a series to be issued in book-entry form and to
be sold or traded in Europe may be represented by one or more Global Notes held
through Cedel Bank, societe anonyme ("Cedel Bank") or Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator" or "Euroclear") and the holders of the Debt Securities may
hold their securities through Cedel Bank or Euroclear if they are participants
of such systems, or indirectly through organizations that are participants in
such systems. Cedel Bank and Euroclear will hold omnibus positions on behalf of
Cedel Bank Participants and Euroclear Participants (each as hereinafter
defined), respectively, on the books of their respective depositaries (each, a
"Euro-Depositary"), which in turn will hold such positions on the books of DTC.
Transfers between Cedel Bank Participants and Euroclear Participants will
occur in the ordinary way in accordance with their applicable rules and
operating procedures. Cross-market transfers between persons holding directly or
indirectly through DTC in the United States, on the one hand, and directly or
indirectly through Cedel Bank Participants or Euroclear Participants, on the
other, will be effected by DTC in accordance with DTC rules on behalf of the
relevant European international clearing system by its Euro-Depositary. Such
cross-market transactions, however, will require delivery of instructions to the
relevant European international clearing system by the counterparty in such
system in accordance with its rules and procedures and within its established
deadlines. The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its
Euro-Depositary to take action to effect final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving in accordance
with normal procedures for same-day funds settlement applicable to DTC. Cedel
Bank Participants and Euroclear Participants may not deliver instructions
directly to the Euro-Depositaries.
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Because of time-zone differences, credits for securities in Cedel Bank or
Euroclear as a result of a transaction with a DTC Participant will be made
during the subsequent securities settlement processing, and will be dated the
business day following the DTC settlement date, and such credits or any
transactions in such securities settled during such processing will be reported
to the relevant Cedel Bank Participant or Euroclear Participant on such business
day. Cash received in Cedel Bank or Euroclear as a result of sales of securities
by or through a Cedel Bank Participant or a Euroclear Participant to a DTC
Participant will be received with value on the DTC settlement date but will be
available in the relevant Cedel Bank or Euroclear cash account only as of the
business day following settlement in DTC.
Cedel Bank is incorporated under the laws of Luxembourg as a professional
depository. Cedel Bank holds securities for its participating organizations
("Cedel Participants") and facilitates the clearance and settlement of
securities transactions between Cedel Participants through electronic book-entry
changes in accounts of Cedel Participants, thereby eliminating the need for
physical movement of certificates. Transactions may be settled by Cedel Bank in
any of 28 currencies, including United States dollars. Cedel Bank provides to
Cedel Participants, among other things, services for safekeeping,
administration, clearance and settlement of internationally traded securities
and securities lending and borrowing. Cedel Bank interfaces with domestic
markets in several countries. As a professional depository, Cedel Bank is
subject to regulation by the Luxembourg Monetary Institute. Cedel Participants
consist of recognized financial institutions around the world, including
underwriters, securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations and may include the underwriters or
agents with respect to a particular series of Debt Securities. Indirect access
to Cedel Bank is also available to others, such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a
Cedel Participant, either directly or indirectly.
The Euroclear System (the "Euroclear System") was created in 1968 to hold
securities for participants of the Euroclear System ("Euroclear Participants")
and to clear and settle transactions between Euroclear Participants through
simultaneous electronic book-entry delivery against payment, thereby eliminating
the need for physical movement of certificates and any risk from lack of
simultaneous transfers of securities and cash. Transactions now may be settled
by Euroclear in any of 32 currencies, including United States dollars. The
Euroclear System includes various other services, including securities lending
and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC
described above. The Euroclear System is operated by the Euroclear Operator,
under contract with Euroclear Clearance System, S.C., a Belgian cooperative
corporation (the "Cooperative"). All operations are conducted by the Euroclear
Operator, and all Euroclear securities clearance accounts and Euroclear cash
accounts are accounts with the Euroclear Operator, not the Cooperative. The
Cooperative establishes policy for the Euroclear System on behalf of Euroclear
Participants. Euroclear Participants include banks (including central banks),
securities brokers and dealers and other professional financial intermediaries
and may include the underwriters or agents with respect to a particular series
of Debt Securities. Indirect access to the Euroclear System is also available to
other firms that clear through or maintain a custodial relationship with a
Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Brussels branch of a New York banking
corporation that is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Federal Reserve Board and the New York State
Banking Department, as well as the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and applicable Belgian law
(collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within the Euroclear System, withdrawal of
securities and cash from the Euroclear System and receipts of payments with
respect to securities in the Euroclear System. All securities in the Euroclear
System are held on a fungible basis without attribution of specific certificates
to specific securities clearance accounts. The Euroclear Operator acts under the
Terms and Conditions only on behalf of Euroclear Participants and has no record
of or relations with persons holding through Euroclear Participants.
Distributions with respect to Debt Securities of a series held through
Cedel Bank or Euroclear will be credited to the cash accounts of Cedel
Participants or Euroclear Participants in accordance with the relevant
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system's rules and procedures, to the extent received by its respective
Euro-Depositary. Such distributions will be subject to tax reporting in
accordance with relevant United States tax laws and regulations. The applicable
Prospectus Supplement with respect to a series of Debt Securities held through
Cedel Bank or Euroclear will set forth certain income tax consequences to
foreign investors. Cedel Bank or the Euroclear Operator, as the case may be,
will take any other action permitted to be taken by a holder of Debt Securities
under the applicable Indenture on behalf of a Cedel Participant or Euroclear
Participant only in accordance with its relevant rules and procedures and
subject to its respective Euro-Depositary's ability to effect such actions on
its behalf through DTC.
Although Cedel Bank and Euroclear have agreed to the foregoing procedures
in order to facilitate transfers of applicable Debt Securities among
participants of DTC, Cedel Bank and Euroclear, they are under no obligation to
perform or continue to perform such procedures, and such procedures may be
discontinued at any time.
Conversion or Exchange Rights
The terms and conditions, if any, upon which Debt Securities being offered
are convertible or exchangeable into Common Stock will be set forth in the
Prospectus Supplement relating thereto. Such terms will include the conversion
or exchange price, the conversion or exchange period, provisions as to whether
conversion or exchange will be at the option of the Holder or the Company, the
events requiring an adjustment of the conversion or exchange price and
provisions affecting conversions or exchanges in the event of the redemption of
such Debt Securities.
Concerning the Trustees
The Company may from time to time maintain deposit accounts and conduct
other banking transactions with The First National Bank of Chicago or The Bank
of New York and their affiliated entities in the ordinary course of business.
Certain Definitions
Set forth below is summary of certain defined terms used in the applicable
Indenture. Reference is made to the applicable Indenture for the full definition
of all such terms.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
the applicable Indenture relating to the Debt Securities of such series, except
(i) the right of Holders of Debt Securities of such series to receive, from the
trust fund described under "Discharge, Legal Defeasance and Covenant Defeasance"
above, payment of the principal of (and premium, if any) and interest on such
Debt Securities when such payments are due, (ii) the Company's obligations with
respect to the Debt Securities of such series under the provisions relating to
exchanges, transfers and replacement of Debt Securities, the maintenance of an
office or agency of the Company and the defeasance trust fund, the provisions
relating to compensation and reimbursement of the applicable Trustee and (iii)
the rights, powers, trusts, duties and immunities of the applicable Trustee
thereunder. (Section 15.02)
"Indebtedness" means (i) any liability of any Persons (a) for borrowed
money, or (b) evidenced by a bond, note, debenture or similar instrument
(including purchase money obligations but excluding trade payables), or (c) for
the payment of money relating to a lease that is required to be classified as a
capitalized lease obligation in accordance with generally accepted accounting
principles, or (d) preferred or preference stock of a Subsidiary of the Company
held by Persons other than the Company or a Subsidiary of the Company; (ii) any
liability of others described in the preceding clause (i) that the Person has
guaranteed, that is recourse to such Person or that is otherwise its legal
liability; and (iii) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to in clauses (i)
and (ii) above. (Section 1.01)
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (i) Indebtedness of the Company, whether outstanding on the
date of the Subordinated Indenture or
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thereafter created, incurred, assumed or guaranteed, for money borrowed (other
than the Indebtedness evidenced by the Subordinated Debt Securities of any
series), unless in the instrument creating or evidencing the same or pursuant to
which the same is outstanding it is provided that such Indebtedness is not
senior or prior in right of payment to the Subordinated Debt Securities or is
pari passu or subordinate by its terms in right of payment to the Subordinated
Debt Securities and (ii) renewals, extensions and modifications of any such
Indebtedness. (Section 1.01 of the Subordinated Indenture)
"Subsidiary" means any Corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such Corporation, irrespective of whether or not at
the time stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency, is at the
time, directly or indirectly, owned or controlled by the Company or by one or
more Subsidiaries thereof, or by the Company and one or more Subsidiaries
thereof. (Section 1.01)
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the timely 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 the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and 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 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. (Section 15.02)
DESCRIPTION OF CAPITAL STOCK
GENERAL
Set forth below is a description of the material terms and provisions of
the equity securities of the Company. The following description does not purport
to be complete and is subject to and qualified in its entirety by reference to
the Restatement of Articles of Incorporation of the Company (the "Articles of
Incorporation") and the By-Laws, as amended, of the Company (the "By-Laws") and
the Rights Plan of the Company dated as of July 27, 1994 between the Company and
ChaseMellon Shareholders Services, L.L.C., as Rights Agent (the "Rights Plan").
The Articles of Incorporation are an exhibit to the Company's Current Report on
Form 8-K dated November 27, 1996, the By-Laws are an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995, and the
Rights Plan is an exhibit to Company's Registration Statement on Form 8-A.
The Company is authorized to issue (i) 100,000,000 shares of Common Stock,
par value $2.00 per share and (ii) 20,000,000 shares of Preferred Stock, par
value $2.00 per share, which may be issued in one or more series with such
voting powers, designations, preferences, rights, qualifications, limitations
and restrictions as shall be specified by the Board of Directors. The Board of
Directors may issue one or more series of preferred stock with voting and
conversion rights which could adversely affect the voting power of the holders
of Common Stock and the holders of other series of Preferred Stock, and which
could, among other things, have the effect of delaying, deferring or preventing
a change in control of the Company. In connection with the Rights Plan, the
Board of Directors authorized the issuance of 1,000,000 shares of Series A
Junior Participating Preferred Stock to holders of rights issued under the
Rights Plan. See "-- Rights Plan" below.
As of December 31, 1996, 28,468,052 shares of Common Stock were issued and
outstanding, excluding 1,159,682 treasury shares, and 1,955,000 shares of
Preferred Redeemable Increased Dividend Equity SecuritiesSM, 6 3/4% PRIDESSM,
Convertible Preferred Stock, par value $2.00 per share ("PRIDES") were issued
and outstanding.
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COMMON STOCK
Dividends
Holders of the Company's Common Stock are entitled to receive such
dividends as may be legally declared by the Board of Directors. The declaration
and amount of future dividends may depend, in part, on restrictive covenants
contained in certain loan agreements.
Voting Rights
Holders of Common Stock are entitled to one vote for each share held of
record. Except as discussed below, action of the stockholders may generally be
taken by the affirmative vote of a majority of the shares present or represented
at a duly called meeting at which a quorum is present or represented.
Other Rights
Holders of Common Stock have no preemptive or subscription rights and have
no liability for further calls or assessments. All shares of Common Stock are
entitled to share ratably in the net assets of the Company upon liquidation.
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholders Services, L.L.C. of New York, New York.
PRIDES
General
The PRIDES are shares of convertible preferred stock and rank prior to the
Common Stock as to payment of dividends and distribution of assets upon
liquidation. The shares of PRIDES mandatorily convert into shares of Common
Stock on July 1, 2000 (the "Mandatory Conversion Date") and the Company has the
option to redeem the shares of PRIDES, in whole or in part, at any time and from
time to time on or after July 1, 1998, and prior to the Mandatory Conversion
Date at the Call Price (as defined herein), payable in shares of Common Stock.
In addition, the shares of PRIDES are convertible into shares of Common Stock at
the option of the holder at any time prior to the Mandatory Conversion Date as
set forth below.
Dividends
Holders of shares of PRIDES are entitled to receive annual cumulative
dividends at a rate per annum of 6 3/4% of the stated liquidation preference
(equivalent to a rate of $2.97 per annum for each share of PRIDES), from the
date of initial issuance, payable quarterly in arrears on each January 1, April
1, July 1, and October 1, or, if any such date is not a business day, on the
next succeeding business day, commencing July 1, 1995.
Mandatory Conversion
On the Mandatory Conversion Date, unless previously redeemed or converted,
each outstanding share of PRIDES are mandatorily convertible into (i) one share
of Common Stock, subject to adjustment in certain events, and (ii) the right to
receive cash in an amount equal to all accrued and unpaid dividends thereon
(other than previously declared dividends payable to a holder of record as of a
prior date).
Optional Redemption
Shares of PRIDES are not redeemable prior to July 1, 1998. At any time and
from time to time on or after July 1, 1998, and ending immediately prior to the
Mandatory Conversion Date, the Company may redeem any or all of the outstanding
shares of PRIDES. Upon any such redemption, each holder will receive, in
exchange for each share of PRIDES, the number of shares of Common Stock equal to
the Call Price divided by the Current Market Price (as defined herein) on the
applicable date of determination, but in no event less than .826 of a share of
Common Stock at the time of issuance of the PRIDES, subject to adjustment as
described herein. The number of shares of Common Stock to be delivered in
payment of the
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applicable Call Price will be determined on the basis of the Current Market
Price of the Common Stock prior to the announcement of the redemption, and the
market price of the Common Stock may vary between the date of such determination
and the subsequent delivery of such shares.
The "Call Price" of each share of PRIDES is the sum of (i) $45.188 on and
after July 1, 1998, to and including September 30, 1998, $45.040 on and after
October 1, 1998, to and including December 31, 1998, $44.891 on and after
January 1, 1999, to and including March 31, 1999, $44.743 on and after April 1,
1999, to and including June 30, 1999, $44.594 on and after July 1, 1999, to and
including September 30, 1999, $44.446 on and after October 1, 1999, to and
including December 31, 1999, $44.297 on and after January 1, 2000, to and
including March 31, 2000, $44.149 on and after April 1, 2000, to and including
May 31, 2000, and $44.00, on and after June 1, 2000, to and including July 1,
2000, and (ii) all accrued and unpaid dividends thereon to but not including the
date fixed for redemption (other than previously declared dividends payable to a
holder of record as of a prior date).
The "Current Market Price" per share of the Common Stock on any date of
determination means the lesser of (x) the average of the Closing Prices (as
defined below) of the Common Stock for the 15 consecutive trading days ending on
and including such date of determination and (y) the Closing Price of the Common
Stock for such date of determination; provided, however, that, with respect to
any redemption of shares of PRIDES, if any event resulting in an adjustment of
the Common Equivalent Rate occurs during the period beginning on the first day
of such 15-day period and ending on the applicable redemption date, the Current
Market Price as determined pursuant to the foregoing will be appropriately
adjusted to reflect the occurrence of such event. The term "Closing Price" on
any day means the last reported sales price on such day or, in case no such sale
takes place on such day, the average of the reported closing high and low
quotations, in each case on the Nasdaq National Market, or, if the Common Stock
is not listed on the Nasdaq National Market, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or, if not listed or admitted to trading on any national securities exchange,
the average of the high bid and low-asked quotations of the Common Stock in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similarly generally accepted reporting
service, or, if no such quotations are available, the fair market value of the
Common Stock as determined by any New York Stock Exchange member firm selected
from time to time by the Board of Directors of the Company for such purpose.
The "Common Equivalent Rate" is initially one share of Common Stock for
each share of PRIDES and is subject to adjustment as appropriate in certain
circumstances, including if the Company shall (a) pay a stock dividend or make a
distribution with respect to its Common Stock in shares of Common Stock, (b)
subdivide or split its outstanding Common Stock, (c) combine its outstanding
Common Stock into a smaller number of shares, (d) issue by reclassification of
its shares of Common Stock any shares of Common Stock, (e) issue certain rights
(excluding the Rights (as defined under "Description of Capital Stock -- Rights
Plan")) or warrants to all holders of its Common Stock unless such rights or
warrants are issued to each holder of shares of PRIDES on a pro rata basis with
the shares of Common Stock based on the Common Equivalent Rate in effect on the
date immediately preceding such issuance, or (f) pay a dividend or distribute to
all holders of its Common Stock evidences of its indebtedness, cash or other
assets (including capital stock of the Company but excluding any cash dividends
or distributions, other than certain extraordinary cash distributions, and
dividends referred to in clause (a) above) unless such dividend or distribution
is made to each holder of shares of PRIDES on a pro rata basis with the shares
of Common Stock based on the Common Equivalent Rate in effect on the date
immediately preceding such dividend or distribution.
Conversion at the Option of the Holder
At any time prior to the Mandatory Conversion Date, unless previously
redeemed, each share of PRIDES is convertible at the option of the holder
thereof into .826 of a share of Common Stock at the time of issuance of the
PRIDES (the "Optional Conversion Rate"), equivalent to the Conversion Price of
$53.24 per share of Common Stock at the time of issuance of the PRIDES, subject
to adjustment as described herein. The number of shares of Common Stock a holder
will receive upon redemption, and the value of the shares received upon
conversion, will vary depending on the market price of the Common Stock from
time to time,
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all as set forth herein. The right of holders to convert shares of PRIDES called
for redemption will terminate immediately prior to the close of business on the
redemption date.
Voting Rights
The holders of shares of PRIDES have the right with the holders of Common
Stock to vote in the election of Directors and upon each other matter coming
before any meeting of the holders of Common Stock on the basis of 4/5 of a vote
for each share of PRIDES. On such matters, the holders of shares of PRIDES and
the holders of Common Stock will vote together as one class except as otherwise
provided by law or the Company's Articles of Incorporation. In addition, (i)
whenever dividends on the shares of PRIDES or any other series of the Company's
preferred stock (all series of which, including the shares of PRIDES,
hereinafter are called the "Preferred Stock") with like voting rights are in
arrears and unpaid for six quarterly dividend periods, and in certain other
circumstances, the holders of the shares of PRIDES (voting separately as a
class) will be entitled to vote, on the basis of one vote for each share of
PRIDES, for the election of two Directors of the Company, such Directors to be
in addition to the number of Directors constituting the Board of Directors
immediately prior to the accrual of such right, and (ii) the holders of the
shares of PRIDES may have voting rights with respect to certain alterations of
the Company's Articles of Incorporation and certain other matters, voting on the
same basis or separately as a series.
Liquidation Preference and Ranking
The shares of PRIDES rank prior to the Common Stock as to payment of
dividends and distribution of assets upon liquidation. The liquidation
preference of each share of PRIDES is an amount equal to the sum of (i) $44.00
and (ii) all accrued and unpaid dividends thereon.
PREFERRED STOCK
The description of certain provisions of the Preferred Stock set forth
below and in any Prospectus Supplement does not purport to be complete and is
subject to and qualified in its entirety by reference to the Company's Articles
of Incorporation and the Articles of Amendment relating to each such series of
Preferred Stock, which will be filed with the Commission in connection with the
offering of such series of Preferred Stock.
General
Under the Company's Articles of Incorporation, the Board of Directors may,
by resolution, establish series of Preferred Stock having such voting powers,
and such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as the Board of Directors may determine.
The Preferred Stock offered hereby will have the dividend, liquidation and
voting rights set forth below unless otherwise provided in the Prospectus
Supplement relating to a particular series of Preferred Stock. Reference is made
to the Prospectus Supplement relating to the particular series of Preferred
Stock offered thereby for specific terms, including: (1) the designation and
stated value per share of such Preferred Stock and the number of shares offered;
(2) the amount of liquidation preference per share; (3) the price at which such
Preferred Stock will be issued; (4) the dividend rate (or method of
calculation), the dates on which dividends will be payable, whether such
dividends will be cumulative or noncumulative and, if cumulative, the dates from
which dividends will commence to cumulate; (5) any redemption or sinking fund
provisions; (6) any terms by which such series of Preferred Stock may be
convertible into or exchanged for Common Stock or Debt Securities; and (7) any
additional or other rights, preferences, privileges, limitations and
restrictions relating to such series of Preferred Stock.
The Preferred Stock offered hereby will be issued in one or more series.
The holders of Preferred Stock will have no preemptive rights. Preferred Stock
will be fully paid and nonassessable upon issuance against full payment of the
purchase price therefor. Unless otherwise specified in the Prospectus Supplement
relating to a particular series of Preferred Stock, each series of Preferred
Stock will, with respect to dividend rights and
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<PAGE> 26
rights on liquidation, dissolution and winding up of the Company, rank prior to
the Common Stock (the "Junior Stock") and on a parity with each other series of
Preferred Stock offered hereby (the "Parity Stock").
Dividend Rights
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the Prospectus Supplement relating to such series of Preferred
Stock. Such rate may be fixed or variable or both. Each such dividend will be
payable to the holders of record as they appear on the stock books of the
Company on such record dates as will be fixed by the Board of Directors of the
Company. Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the Prospectus Supplement relating thereto. If the
Board of Directors of the Company fails to declare a dividend payable on a
dividend payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay the dividend accrued for that period, whether or not
dividends are declared for any future period. Dividends on shares of each series
of Preferred Stock for which dividends are cumulative will accrue from the date
set forth in the applicable Prospectus Supplement.
The Preferred Stock of each series will include customary provisions (1)
restricting the payment of dividends or the making of other distributions on, or
the redemption, purchase or other acquisition of, Junior Stock unless full
dividends, including, in the case of cumulative Preferred Stock, accruals, if
any, in respect of prior dividend periods, on the shares of such series of
Preferred Stock have been paid and (2) providing for the pro rata payment of
dividends on such series and other Parity Stock when dividends have not been
paid in full upon such series and other Parity Stock.
Rights Upon Liquidation
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock will be
entitled to receive out of assets of the Company available for distribution to
stockholders, before any distribution of assets is made to holders of Junior
Stock, liquidating distributions in the amount set forth in the Prospectus
Supplement relating to such series of Preferred Stock plus an amount equal to
accrued and unpaid dividends. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Preferred Stock of any series and any Parity Stock are not paid in full, the
holders of the Preferred Stock of such series and of such Parity Stock will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts (which may include accumulated
dividends) to which they are entitled. After payment of the full amount of the
liquidating distribution to which they are entitled, the holders of such series
of Preferred Stock will have no right or claim to any of the remaining assets of
the Company. Neither the sale of all or a portion of the Company's assets nor
the merger or consolidation of the Company into or with any other corporation
shall be deemed to be a dissolution, liquidation or winding up, voluntarily or
involuntarily, of the Company.
Voting Rights
The holders of Preferred Stock of a series offered hereby will not be
entitled to vote except as indicated in the Prospectus Supplement relating to
such series of Preferred Stock or as required by applicable law. Unless
otherwise specified in the Prospectus Supplement relating to a particular series
of Preferred Stock, when and if any such series is entitled to vote, each share
in such series will be entitled to one vote.
DEPOSITARY SHARES
General
UCFC may elect to offer fractional interests in the Preferred Stock rather
than whole shares of such securities. In such event, UCFC will provide for the
issuance by a Depositary (as hereinafter defined) to the
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public of receipts ("Depositary Receipts") evidencing depositary shares (the
"Depositary Shares"), each of which will represent a fractional interest in a
share of a particular series of the Preferred Stock, as set forth in the
Prospectus Supplement for such series of Preferred Stock.
Certain general terms and provisions of the form of Deposit Agreement (as
hereinafter defined), the Depositary Shares and the form of Depositary Receipts
to which a Prospectus Supplement may relate are set forth below. The particular
terms of the Preferred Stock offered by any Prospectus Supplement and the
extent, if any, to which such general provisions may apply to the Depositary
Shares will be described in the applicable Prospectus Supplement. The
descriptions below and in any Prospectus Supplement do not purport to be
complete and are subject to and qualified in their entirety by reference to the
Deposit Agreement and the Depositary Receipts, the forms of which are
incorporated by reference in the Registration Statement of which this Prospectus
is a part and the definitive forms of which will be filed with the Commission at
the time of sale of such Depositary Shares.
The shares of any series of Preferred Stock underlying Depositary Shares
will be deposited under a separate Deposit Agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company having
its principal office in the United States and having a combined capital and
surplus of at least $5,000,000 (the "Depositary"). The applicable Prospectus
Supplement will set forth the name and address of the Depositary. Subject to the
terms of the Deposit Agreement, each owner of a Depositary Share will be
entitled, in proportion to the applicable fractional interest in a share of
Preferred Stock underlying such Depositary Share, to all the rights and
preferences of the Preferred Stock underlying such Depositary Share (including
dividend, voting, redemption, conversion and liquidation rights).
Depositary Shares will be evidenced by Depositary Receipts issued pursuant
to a Deposit Agreement. Depositary Receipts will be distributed to those persons
purchasing the fractional shares of the related series of Preferred Stock in
accordance with the terms of the offering as described in the applicable
Prospectus Supplement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
Upon the surrender of Depositary Receipts at the office of the Depositary
(unless the Depositary Shares have been previously called for redemption) and
upon payment by the holder of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Shares is entitled to have
the Depositary deliver to such holder the number of whole shares of the
Preferred Stock underlying the Depositary Shares evidenced by the surrendered
Depositary Receipts; provided, however, that the holder of such shares of
Preferred Stock will not thereafter be entitled to receive Depositary Shares
therefor. If the Depositary Receipts delivered by the holder evidence a number
of Depositary Shares in excess of the number of Depositary Shares representing
the number of whole shares of the related series of Preferred Stock to be
withdrawn, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of 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 relating to such Preferred Stock in proportion to the
number of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
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 thereto, unless the Depositary determines that it is not
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feasible to make such distribution, in which case the Depositary, with the
approval of the Company, may sell such property and distribute the net proceeds
from such sale to such holders.
Redemption of Depositary Shares
If a series of Preferred Stock underlying Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The Depositary shall mail
notice of redemption not less than 30 and not more than 45 days prior to the
date fixed for redemption to the record holders of the Depositary Shares to be
so redeemed at their respective addresses appearing in the Depositary's books.
The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever the Company redeems Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemption date the number
of Depositary Shares relating to the Preferred Stock so redeemed. If less than
all the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption 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 the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock held by the Depositary are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of 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 amount of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of Preferred Stock underlying such
Depositary Shares in accordance with such instructions, and the Company 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
Preferred Stock to the extent it does not receive specific instructions from the
holders of Depositary Shares relating to such Preferred Stock.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing Depositary Shares and any
provision of a Deposit Agreement may at any time be amended by agreement between
the Company and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority in interest of the Depositary Shares then outstanding. A
Deposit Agreement may be terminated by the Company or the Depositary only if (i)
all outstanding Depositary Shares relating thereto have been redeemed or (ii)
there has been a final distribution in respect of the Preferred Stock underlying
such Depositary Shares in connection with any liquidation, dissolution or
winding up of the Company.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of
Preferred Stock and any redemption of Preferred Stock. Holders of Depositary
Shares will pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreements to be for
their accounts.
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Miscellaneous
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under a Deposit Agreement. The obligations of the Company and the
Depositary under a Deposit Agreement will be limited to performance in good
faith of their respective duties thereunder and neither entity will be obligated
to prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Stock unless satisfactory indemnity is furnished. Each entity may
relay 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
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect only upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $5,000,000.
SPECIAL CHARTER, BY-LAW AND LOUISIANA LAW PROVISIONS
Certain provisions of the Company's Articles of Incorporation, the
Company's By-Laws, Louisiana law, and the Company's Rights Plan, may have the
effect of delaying, deterring or discouraging, among other things, a
non-negotiated tender or exchange offer for the Company's Common Stock or a
proxy contest for control of the Company.
Anti-Takeover Provisions in the Company's Articles of Incorporation and
By-Laws
The Company's By-Laws, among other things: (1) authorize the Board of
Directors exclusively to fix the number of directors by no less than a 66 2/3%
vote and classify the Board into three classes with staggered terms; (2) provide
procedures for the removal of directors and for filling vacancies on the Board;
(3) provide advance notice procedures for shareholder nominations and proposals;
and (4) provide procedures for the calling of a special meeting of the
shareholders.
In addition, the Company's Articles of Incorporation, among other things,
require the affirmative vote of the holders of not less than 80% of the total
voting power of the Company to alter, amend or repeal the foregoing provisions
of the Company's By-Laws.
Other provisions of the Company's Articles of Incorporation: (a) provide
that no action may be taken by the shareholders except at an annual or special
meeting; (b) provide that a special meeting of the shareholders may be called
only by a written request signed by the holders of no less than 66 2/3% of the
total voting power of the Company; (c) provide that provisions (a) and (b) may
not be amended, altered or repealed except by the affirmative vote of the
holders of no less than 80% of the total voting power of the Company; and (d)
eliminate the right of a director absent from a meeting of the Board or any
committee thereof to give a proxy to another director or to a shareholder.
Taken together, the foregoing provisions of the Articles of Incorporation
and By-Laws of the Company (which provisions may not be amended, altered or
repealed without the 80% shareholder vote) make more difficult, and thus may
discourage, any attempt to gain control of the Company through a proxy contest
or through the acquisition of the Company's Common Stock, and as a result, will
tend to perpetuate the control of present management. The 80% voting
requirements in certain of the foregoing provisions could allow the holders of
just over 20% of the total voting power of the Company to defeat proposed
actions that might be supported by persons holding a majority of the total
voting power of the Company. As of December 31, 1996,
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the directors and executive officers of the Company were the beneficial owners
of 5.2% of the outstanding shares of Common Stock.
The Company's Articles of Incorporation contain other provisions that have
intended "anti-takeover" effects. The Articles of Incorporation of the Company
include certain provisions (the "Special Vote Provisions") requiring the
affirmative vote of 80% of the outstanding shares of the Company's voting stock
before the Company may enter into (i) a merger or consolidation with any other
corporation, (ii) a sale or lease of substantially all of the assets of the
Company to any other corporation, person or entity, or (iii) a sale or lease to
the Company by any other corporation, person or other entity of assets having a
value greater than $1 million in exchange for voting stock of the Company, in
each case if such other corporation, person or other entity, directly or
indirectly, owns or controls 10% or more of the Company's voting stock prior to
any such transaction. The Special Vote Provisions apply only to the
above-described transactions which do not receive prior approval of the Board of
Directors.
The Articles of Incorporation of the Company also contain certain
provisions (the "Takeover Consideration Provisions") authorizing the Board of
Directors, in evaluating an offer from a third party to merge with or acquire
the shares or assets of the Company, to give due consideration to certain
factors not directly related either to the price per share offered for or the
then market price of the Company's Common Stock. The factors that the Board of
Directors is authorized to consider under the Takeover Consideration Provisions
include, without limitation: (i) the consideration being offered in the
acquisition proposal as it relates to the then current value of the Company in a
freely negotiated transaction, and to the Board of Directors' then estimate of
the future value of the Company as an independent entity; (ii) the social, legal
and economic effects of the acquisition proposal on the Company and its
subsidiaries, and the franchisees, employees, suppliers, customers, creditors
and business of the Company and its subsidiaries; (iii) the financial condition
and earnings prospects of the potential offeror, including but not limited to,
debt service and other existing or likely financial obligations of the potential
offeror, and the possible effect of such condition upon the Company and its
subsidiaries and other elements of the communities in which the Company and its
subsidiaries operate or are located; and (iv) the competence, experience and
integrity of the potential offeror.
Pursuant to Section 92G of the Louisiana Business Corporation Law (the
"LBCL"), the Board of Directors is also authorized to consider the factors set
forth therein (which are generally comparable to those set forth in the Takeover
Consideration Provisions) and any other factors which it deems relevant in
evaluating a tender offer or an offer to make a tender or exchange offer or to
effect a merger or consolidation.
The Special Vote Provisions and the Takeover Consideration Provisions may
be altered only by the affirmative vote of 80% of the outstanding shares of the
Company's voting stock.
Directors' and Officers' Exculpation and Indemnification
The Articles of Incorporation provide that no director or officer of the
Company shall be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director or officer except
for liability (i) for breach of the director's or officer's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 92D of the LBCL, which specifies certain corporate transactions, such as
certain dividend declarations and dispositions of assets, as unlawful, or (iv)
for any transaction from which the director or officer derived an improper
personal benefit. With the exception of the items noted in (i) through (iv)
above, the effect of this provision of the Articles of Incorporation is to
eliminate the rights of the Company and its stockholders (through stockholders'
derivative suits on behalf of the Company) to recover monetary damages against a
director or officer for breach of his or her fiduciary duty as a director or
officer. This provision does not limit or eliminate the rights of the Company or
any stockholders to seek non-monetary relief, such as an injunction or
rescission in the event of a breach of a director's or officer's fiduciary duty.
Pursuant to Section 83 of the LBCL, the Company has adopted provisions in
its Articles of Incorporation which require the Company to indemnify its
directors and officers to the fullest extent permitted by Louisiana law.
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The Company has also entered into indemnification agreements with its
directors and certain of its officers.
Louisiana Fair Price and Control Share Acquisition Statutes
As a Louisiana corporation, the Company is subject to the provisions of the
LBCL which contain "fair price" and "control share acquisition" provisions. Each
of these provisions imposes significant restrictions on the ability of an
acquiror of a large block of voting stock of a Louisiana corporation to exercise
control over the corporation.
The "fair price" provisions are set forth in Sections 132-134 of the LBCL
and are designed to restrict the ability of a Louisiana corporation to enter
into mergers or other extraordinary corporate transactions with certain
stockholders. These provisions require that certain business combinations
between a Louisiana corporation and "interested stockholders" must be approved
by (i) the corporation's Board of Directors, (ii) the affirmative vote of at
least 80% of the voting stock of the corporation, and (iii) the affirmative vote
of two-thirds of the voting stock of the corporation (excluding stock held by
the interested stockholders), unless the business combination satisfies certain
"fair price" tests regarding the payments to be made to stockholders and meets
certain other procedural requirements. An "interested stockholder" is defined as
any person (other than the corporation, any subsidiary of the corporation or any
employee benefit plan of the corporation or any subsidiary) that is the
beneficial owner of 10% or more of the voting stock of the corporation. In
general, the "fair price" tests measure the value stockholders receive for their
stock from an interested stockholder in transactions within a two year period.
The "control share acquisition" provisions of the LBCL are set forth in
Sections 135-140.2. In general, these provisions provide that persons who, after
May 4, 1987, acquire stock that would normally entitle them to exercise 20% or
more of the voting power of the corporation will not be able to vote the shares
acquired by them in excess of 20% of such voting power unless their ability to
vote is reinstated by the stockholders of the corporation at a meeting held
after the acquiring person requests such a vote. A corporation is required to
call such a meeting only if the person proposing to make a control share
acquisition (an "acquiring stockholder") has demonstrated a financial ability to
make a successful acquisition and such proposed acquisition is lawful. At such a
meeting, the voting rights of the acquiring stockholder will be reinstated for
shares held by the acquiring stockholder in excess of 20% of the Company's
voting power if approved by the affirmative vote of (i) a majority of all shares
of the Company then entitled to vote and (ii) a majority of all shares of the
Company then entitled to vote (excluding shares beneficially owned by the
acquiring stockholder, its officers and its directors who are also its
employees). If the voting rights of the acquiring stockholder are reinstated,
such stockholder can acquire additional voting shares within certain threshold
levels, without obtaining additional stockholder approval. However, if the
acquiring stockholder acquires additional shares in an acquisition that places
such stockholder above the threshold ownership levels of one-third and one-half
of all voting shares, the additional shares acquired in such an acquisition in
excess of such ownership levels will not have voting rights unless reinstated by
the stockholders pursuant to the voting procedures described above. A
corporation must call a stockholders' meeting within 50 days of the date that
both the corporation and the proposed acquiring stockholder file definitive
proxy materials with the Commission.
RIGHTS PLAN
On July 27, 1994, the Board of Directors of the Company redeemed the rights
issued under the rights plan adopted in February 1989, adopted the Rights Plan,
declared a dividend of one preferred stock purchase right (a "Right") for each
outstanding share of Common Stock on August 6, 1994, and authorized the issuance
of one Right with respect to each share of Common Stock issued after August 6,
1994, and before the earliest of the Distribution Date, the Redemption Date and
the Final Expiration Date (as such terms are hereinafter defined). The Rights
have anti-takeover effects. The Rights will cause substantial dilution to a
person or group that attempts to acquire the Company on terms not approved by
the Board of Directors, except pursuant to an offer conditioned on a substantial
number of Rights being acquired.
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Each Right entitles the registered holder upon exercise on and after the
Distribution Date to purchase from the Company one one-hundredth of a share of
Series A Junior Participating Preferred Stock, par value $2.00 per share (the
"Preferred Shares"), of the Company at a price of $240.00 per one one-hundredth
of a Preferred Share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights, and the Preferred Shares into which such
Rights are exercisable, are set forth in the Rights Plan.
The "Distribution Date" occurs on the earliest of the close of business on
(i) the tenth day following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired beneficial
ownership of 20% or more of the outstanding shares of Common Stock, (ii) the
tenth day (or such later date as may be determined by action of the Board of
Directors of the Company prior to such time as any person becomes an Acquiring
Person) following the commencement of, or announcement of an intention to make,
a tender offer or exchange offer, the consummation of which would result in the
beneficial ownership by a person or group of 25% or more of the outstanding
shares of Common Stock, or (iii) 10 days after the Board of Directors shall
declare any person to be an "Adverse Person," upon a determination that such
person, alone or together with its affiliates and associates, has become the
beneficial owner of 10% or more of the outstanding shares of Common Stock and a
determination by at least a majority of the Board of Directors who are not
officers of the Company, after reasonable inquiry and investigation, including
consultation with such persons as such directors shall deem appropriate, that
(a) such beneficial ownership by such person is intended to cause, is reasonably
likely to cause or will cause the Company to repurchase the shares of Common
Stock beneficially owned by such person or to cause pressure on the Company to
take action or enter into a transaction or series of transactions intended to
provide such person with short-term financial gain under circumstances where the
Board of Directors determines that the best long-term interests of the Company
and its stockholders would not be served by taking such action or entering into
such transactions or series of transactions at that time or (b) such beneficial
ownership is causing or is reasonably likely to cause a material adverse impact
(including, but not limited to, impairment of relationships with customers or
impairment of the Company's ability to maintain its competitive position) on the
business or prospects of the Company. However, the Board of Directors may not
declare a person to be an Adverse Person if, prior to the time that the person
acquired 10% or more of the shares of Common Stock then outstanding, such person
provided to the Board of Directors in writing a statement of the person's
purpose and intentions in connection with the proposed acquisition of Common
Stock, together with any other information reasonably requested of the person by
the Board of Directors, and the Board of Directors, based on such statement and
reasonable inquiry and investigation as it deems appropriate, determines to
notify and notifies such person in writing that it will not declare the person
to be an Adverse Person; provided, however, that the Board of Directors may
expressly condition in any manner a determination not to declare a person an
Adverse Person on such conditions as the Board of Directors may select,
including without limitation, such person not acquiring more than a specified
amount of stock and/or such person not taking actions inconsistent with the
purposes and intentions disclosed by such person in the statement provided to
the Board of Directors. In the event that the Board of Directors should at any
time determine, upon reasonable inquiry and investigation, that such person has
not met or complied with any conditions specified by the Board of Directors, the
Board of Directors may at any time thereafter declare the person to be an
Adverse Person. Until the Distribution Date, the Rights will be transferred with
and only with shares of Common Stock. The Rights will expire on July 31, 2004
(the "Final Expiration Date"), unless the Rights are earlier redeemed or
exchanged by the Company.
The Purchase Price payable, and the number of Preferred Shares or other
securities of property issuable, on exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event of a stock
dividend on the Preferred Shares or other events described in the Rights Plan.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1.00 per share but will be entitled to an
aggregate dividend of 100 times the dividend declared per share of Common Stock.
In the event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $100.00 per share but
will be entitled to an aggregate payment of 100 times the payment made per share
of Common Stock. Each Preferred Share will have 100 votes, voting together with
the Common Stock, Finally, in the event of merger, consolidation or other
transaction in which shares of Common Stock are exchanged,
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<PAGE> 33
each Preferred Share will be entitled to receive 100 times the amount received
per share of Common Stock. The Rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
The Rights Plan contains a "flip-over" feature allowing the exercise of the
Rights so that the holder thereof (except those Rights held by the Acquiring
Person) will receive shares of Common Stock of the Acquiring Person at half
price, causing substantial dilution to the Acquiring Person. In general, this
"flip-over" feature provides that in the event that the Company is acquired by
an Acquiring Person in a merger or other business combination transaction or 50%
or more of its consolidated assets or earning power are sold to an Acquiring
Person, proper provision will be made so that each holder of a Right, other than
Rights that are or were beneficially owned by the Acquiring Person after the
date upon which the Acquiring Person became such (which will thereafter be
void), will thereafter have the right to receive, upon the exercise thereof at
the then current Purchase Price, that number of shares of common stock of the
Acquiring Person which at the time of such transaction will have a market value
of two times the Purchase Price.
The Rights Plan also contains a "flip-in" feature allowing holders of
Rights (except those held by an Acquiring Person) to purchase Common Stock of
the Company at half price, causing substantial dilution to the Acquiring Person.
In general, this "flip-in" feature provides that in the event that (i) any
person becomes the beneficial owner of 25% or more of the outstanding Common
Stock (unless such person first acquires 25% or more of the outstanding Common
Stock by a purchase pursuant to a tender offer for all of the Common Stock which
the independent directors determine to be fair to and otherwise in the best
interests of the Company and its stockholders, employees, customers and
communities in which the Company does business), (ii) any person is declared by
the Board of Directors to be an Adverse Person, (iii) an Acquiring Person
engages in one or more "self-dealing" transactions set forth in the Rights Plan,
or (iv) during such time as there is an Acquiring Person, there shall be a
reclassification of securities or a recapitalization or reorganization of the
Company or other transaction or series of transactions involving the Company
which has the effect of increasing by more than 1% the proportionate share of
the outstanding shares of any class of equity securities of the Company or any
of its subsidiaries beneficially owned by the Acquiring Person, proper provision
shall be made so that each holder of a Right, other than Rights that are or were
beneficially owned by the Acquiring Person after the date upon which the
Acquiring Person became such (which will thereafter be void), will thereafter
have the right to receive upon exercise that number of shares of Common Stock
(or, in the event that there are insufficient authorized shares of Common Stock
substitute consideration such as cash, property, or other securities of the
Company) having a market value of two times the Purchase Price.
At any time after the acquisition by an Acquiring Person of beneficial
ownership of 20% or more of the outstanding Common Stock and prior to the
acquisition by such person of 25% or more of the outstanding Common Stock, the
Board of Directors of the Company may exchange the Rights (other than Rights
owned by such person which have become void), in whole or in part, at an
exchange ratio of one share of Common Stock, or one one-hundredth of a Preferred
Share (or of a share of a class or series of the Company's preferred stock
having equivalent rights, preferences and privileges), per Right (subject to
adjustment).
At any time prior to the tenth day following a public announcement that an
Acquiring Person has acquired beneficial ownership of 20% or more of the
outstanding Common Stock, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price of $.001 per Right (the "Redemption
Price"). Immediately upon any redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holder of the Rights will be
to receive the Redemption Price. The date on which the redemption of the Rights
occurs pursuant to the foregoing provisions is referred to herein as the
"Redemption Date."
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to lower certain thresholds described above to not less than the greater of (i)
any percentage greater than the largest percentage of the outstanding shares of
the Common Stock then known to the Company to be beneficially owned by any
Acquiring Person and (ii) 10%,
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<PAGE> 34
except that from and after such time as any person becomes an Acquiring Person
no such amendment may adversely effect the interests of the holders of the
Rights.
Until a Right is exercised, the holder of a Right will not, by reason of
being such a holder, have rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
PLAN OF DISTRIBUTION
The Company may offer and sell the Offered Securities in one or more of the
following ways: (i) through underwriters or dealers; (ii) through agents; or
(iii) directly by the Company to one or more purchasers. The Prospectus
Supplement with respect to a particular offering of a series of Offered
Securities will set forth the terms of the offering of such Offered Securities,
including the name or names of any underwriters or agents with whom UCFC has
entered into arrangements with respect to the sale of such Offered Securities,
the public offering or purchase price of such Offered Securities and the
proceeds to the Company from such sales, and any underwriting discounts, agency
fees or commissions and other items constituting underwriters' compensation, the
initial public offering price, any discounts or concessions to be allowed or
reallowed or paid to dealers and any securities exchange on which such Offered
Securities may be listed. Dealer trading may take place in certain of the
Offered Securities, including Offered Securities not listed on any securities
exchange.
If underwriters are used in the offer and sale of Offered Securities, 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. The Offered Securities may be offered to the
public either through underwriting syndicates represented by managing
underwriters, or by underwriters without a syndicate, all of which underwriters
in either case will be designated in the applicable Prospectus Supplement.
Unless otherwise set forth in the applicable Prospectus Supplement, under the
terms of the underwriting agreement, the obligations of the underwriters to
purchase Offered Securities will be subject to certain conditions precedent and
the underwriters will be obligated to purchase all the Offered Securities if any
are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
Offered Securities may be offered and sold directly by the Company or
through agents designated by the Company from time to time. Any agent involved
in the offer or sale of the Offered Securities with respect to which this
Prospectus is delivered will be named in, and any commissions payable by the
Company to such agent will be set forth in or calculable from, the applicable
Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best-efforts basis for the period of its
appointment.
The Offered Securities will be new issues of securities with no established
trading market. Any underwriters to whom Offered Securities are sold by the
Company for public offering and sale may make a market in such Offered
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Offered Securities.
Any underwriter, dealer or agent participating in the distribution of the
Offered Securities may be deemed to be an underwriter, as that term is defined
in the Securities Act, of the Offered Securities so offered and sold, and any
discounts or commissions received by it from UCFC and any profit realized by it
on the sale or resale of the Offered Securities may be deemed to be underwriting
discounts and commissions under the Securities Act.
Under agreements entered into with the Company, underwriters, dealers and
agents may be entitled to indemnification by the Company 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, dealers and agents also may be customers of, engage in
transactions with, or perform other services for the Company in the ordinary
course of business.
33
<PAGE> 35
LEGAL OPINIONS
The legality of the Debt Securities will be passed upon for the Company by
Stroock & Stroock & Lavan LLP, New York, New York. The legality of the Common
Stock and Preferred Stock will be passed upon for the Company by Kantrow, Spaht,
Weaver & Blitzer (A Professional Law Corporation), Baton Rouge, Louisiana.
Certain legal matters in connection with any offering of Securities involving
any underwriters or dealers will be passed upon for such underwriters or dealers
by Simpson Thacher & Bartlett (a partnership which includes professional
corporations), New York, New York. As to matters governed by the laws of the
State of Louisiana, Stroock & Stroock & Lavan LLP and Simpson Thacher & Bartlett
will rely upon Kantrow, Spaht, Weaver & Blitzer (A Professional Law
Corporation). As of December 31, 1996, individual stockholders of the firm of
Kantrow, Spaht, Weaver & Blitzer (A Professional Law Corporation) owned,
directly or indirectly, approximately 50,000 shares of the Company's Common
Stock.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from UCFC's Annual Report
on Form 10-K for the year ended December 31, 1995, as amended by Amendments Nos.
1, 2 and 3 on Form 10-K/A, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods
ended March 31, 1996, June 30, 1996 and September 30, 1996, which is
incorporated herein by reference, Deloitte & Touche LLP have applied limited
procedures in accordance with professional standards for a review of such
information. However, as stated in their reports included in the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June 30,
1996 and September 30, 1996 and incorporated by reference herein, they did not
audit and they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their reports on such information should
be restricted in light of the limited nature of the review procedures applied.
Deloitte & Touche LLP are not subject to the liability provisions of Section 11
of the Securities Act for their reports on the unaudited interim financial
information because those reports are not "reports" or a "part" of the
registration statement prepared or certified by an accountant within the meaning
of Sections 7 and 11 of the Securities Act.
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<PAGE> 36
NO DEALER, SALESPERSON, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS
Incorporation of Certain Documents by
Reference............................. 2
Available Information................... 2
The Company............................. 4
Use of Proceeds......................... 5
Ratios of Earnings...................... 5
Description of Debt Securities.......... 6
Description of Capital Stock............ 21
Plan of Distribution.................... 33
Legal Opinions.......................... 34
Experts................................. 34
</TABLE>
UNITED COMPANIES
FINANCIAL CORPORATION
[UNITED COMPANIES FINANCIAL LOGO]
PROSPECTUS
DATED , 1997
<PAGE> 37
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The registration fee and the estimated expenses, other than underwriting or
broker-dealer fees, discounts and commissions, in connection with the offering
are as follows:
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission...... $ 151,515.15
Printing and Engraving Expenses............................. 275,000.00
Legal Fees and Expenses..................................... 475,000.00
Accounting Fees and Expenses................................ 75,000.00
Blue Sky Fees and Expenses.................................. 15,000.00
Indenture Trustees Expenses................................. 14,500.00
Rating Agency Fees and Expenses............................. 500,000.00
Transfer Agent Fees......................................... 15,000.00
Listing Fees................................................ 15,000.00
Miscellaneous............................................... 200,000.00
-------------
Total............................................. $1,736,015.15
=============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 83 of the Louisiana Business Corporation Law (the "LBCL") provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the corporation), by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another
business, foreign or nonprofit corporation, partnership, joint venture, or other
enterprise. The indemnity may include expenses, including attorney fees,
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. Section 83 further provides that a Louisiana corporation may indemnify
officers and directors in an action by or in the right of the corporation under
the same conditions except that no indemnification is permitted without judicial
approval if the director or officer shall have been adjudged to be liable for
willful or intentional misconduct in the performance of his duty to the
corporation. Where an officer or director is successful on the merits or
otherwise in any defense of any action referred to above or any claim therein,
the corporation must indemnify him against such expenses that such officer or
director actually incurred. Section 83 permits a corporation to pay expenses
incurred by the officer or director in defending an action, suit or proceeding
in advance of the final disposition thereof if approved by the board of
directors.
Pursuant to Section 83 of the LBCL, the Company has adopted provisions in
its Articles of Incorporation which require the Company to indemnify its
directors and officers to the fullest extent permitted by the LBCL.
The Articles of Incorporation, as amended, provide that no director or
officer of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director or
officer except for liability (i) for breach of the directors' or officers' duty
of loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 92(D) of the LBCL, or (iv) for any transaction from
which the director or officer derived an improper personal benefit. Section
92(D) of the LBCL specifies certain corporate transactions, such as certain
dividend declarations and dispositions of assets, as unlawful. The effect of
this provision of the Articles of Incorporation is to eliminate the rights of
the Company and its stockholders (through stockholders' derivative suits on
behalf of the Company) to recover monetary damages against a director or officer
for breach of fiduciary duty as a director or officer. This provision does not
limit or eliminate the rights of the Company or any stockholders to seek
non-monetary relief, such as an injunction or recession in the event of a breach
of a director's or officer's fiduciary duty.
The Company has entered into indemnification agreements with its directors
and certain of its officers which provide that the Company will, if certain
conditions are met and the director or officer acted in
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<PAGE> 38
accordance with the applicable standard and subject to certain procedures and
exceptions, indemnify such persons for claims, judgments and related expenses
resulting from their service on behalf of the Company and its affiliated
entities in any pending, threatened or completed action, suit or proceeding,
whether civil, administrative or criminal, except where (i) the Company is
prohibited by law from providing such indemnification; (ii) payment of the
indemnification amounts has been made under an insurance policy; and (iii) the
director or officer gained a personal profit to which he or she was not legally
entitled including profits arising from the violation of certain securities
laws. A form of the indemnification agreements referenced above has been filed
by the Company as an exhibit to its Quarterly Report on Form 10-Q for the
quarter ended March 31, 1995.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<S> <C>
1.1(1) -- Form of Underwriting Agreement for Securities
4.1(2) -- Series A Junior Participating Preferred Stock Purchase
Rights
4.2(3) -- Senior Indenture
4.3(3) -- Form of Senior Note (included in Exhibit 4.2)
4.4(1) -- Subordinated Indenture
4.5(1) -- Form of Subordinated Note (included in Exhibit 4.4)
4.6(4) -- Form of Articles of Amendment for Preferred Stock
4.7(5) -- Specimen Preferred Stock Certificate
4.8(6) -- Articles of Amendment for PRIDES
4.9(7) -- Specimen Certificate of PRIDES
4.10(1) -- Specimen Common Stock Certificate
4.11(1) -- Form of Deposit Agreement
4.12(1) -- Form of Depositary Receipt (included in Exhibit 4.11)
5.1(1) -- Opinion of Stroock & Stroock & Lavan LLP regarding
legality of securities being registered
5.2(1) -- Opinion of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation) regarding legality of
securities being registered
12.1(8) -- Statement of Computation of Ratio of Earnings to Fixed
Charges
12.2(9) -- Statement of Computation of Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividends
15.1(1) -- Letter of Deloitte & Touche LLP regarding unaudited
financial information
23.1(1) -- Consent of Stroock & Stroock & Lavan LLP (included in
Exhibit 5.1)
23.2(1) -- Consent of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation) (included in Exhibit 5.2)
23.3(1) -- Consent of Deloitte & Touche LLP
24.1(1) -- Powers of Attorney (included in Part II of this
Registration Statement)
25.1(1) -- Statement of Eligibility of Senior Trustee on Form T-1
25.2(1) -- Statement of Eligibility of Subordinated Trustee on Form
T-1
</TABLE>
- ---------------
(1) Filed herewith.
(2) Incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A filed on August 5, 1994.
(3) Incorporated by reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K filed on June 16, 1995.
(4) Incorporated by reference to Exhibit 4.7 to the Company's Registration
Statement on Form S-3 (Registration No. 33-60367) filed on June 19, 1995.
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<PAGE> 39
(5) Incorporated by reference to Exhibit 4.8 to the Company's Registration
Statement on Form S-3 (Registration No. 33-60367) filed on June 19, 1995.
(6) Incorporated by reference to Exhibit 4.9 to the Company's Registration
Statement on Form S-3 (Registration No. 33-60367) filed on June 19, 1995.
(7) Incorporated by reference to Exhibit 4.4 to the Company's Current Report on
Form 8-K filed on June 16, 1995.
(8) Incorporated by reference to Exhibit 12.1 to the Company's Current Report
on Form 8-K filed on December 5, 1996.
(9) Incorporated by reference to Exhibit 12.2 to the Company's Current Report
on Form 8-K filed on December 5, 1996.
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 the 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 20 percent 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 Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
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.
The undersigned Registrant hereby undertakes that, for 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise,
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<PAGE> 40
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that, (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as a part of this Registration
Statement in reliance upon Rule 430A and contained in a form of prospectus filed
by the Registrant pursuant to Rules 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this Registration Statement
as of the time it was declared effective, and (2) for the purpose of determining
any liability under the Securities Act of 1933, each post-effective amendment
that contains a form of prospectus 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.
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<PAGE> 41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Baton Rouge, State of Louisiana on February 19, 1997.
UNITED COMPANIES FINANCIAL CORPORATION
By: /s/ SHERRY E. ANDERSON
-----------------------------------------
Sherry E. Anderson
Senior Vice President and Secretary
Known all men by these presents, that each person whose signature appears
below constitutes and appoints Sherry E. Anderson, Dale E. Redman and J. Terrell
Brown, acting singly, as his true and lawful attorney-in-fact and agent, with
full power of substitution, and for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments or post-effective amendments
to this Registration Statement and any registration statement relating to any
offering made pursuant to this Registration Statement that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each of said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ J. TERRELL BROWN Chairman of the Board and February 19, 1997
- ----------------------------------------------------- Chief Executive Officer
J. Terrell Brown (Principal Executive
Officer)
/s/ JOHN D. DIENES President, Chief Operating February 19, 1997
- ----------------------------------------------------- Officer and Director
John D. Dienes
/s/ DALE E. REDMAN Executive Vice President, February 19, 1997
- ----------------------------------------------------- Chief Financial Officer and
Dale E. Redman Director (Principal
Financial Officer)
/s/ JESSE O. GRIFFIN Senior Vice President and February 19, 1997
- ----------------------------------------------------- Controller (Principal
Jesse O. Griffin Accounting Officer)
/s/ JAMES J. BAILEY, III Director February 19, 1997
- -----------------------------------------------------
James J. Bailey, III
/s/ ROBERT H. BARROW Director February 19, 1997
- -----------------------------------------------------
Robert H. Barrow
/s/ RICHARD A. CAMPBELL Director February 19, 1997
- -----------------------------------------------------
Richard A. Campbell
/s/ HARRIS J. CHUSTZ, JR. Director February 19, 1997
- -----------------------------------------------------
Harris J. Chustz, Jr.
</TABLE>
II-5
<PAGE> 42
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ROY G. KADAIR, M.D. Director February 19, 1997
- -----------------------------------------------------
Roy G. Kadair, M.D.
/s/ O. MILES POLLARD, JR. Director February 19, 1997
- -----------------------------------------------------
O. Miles Pollard, Jr.
/s/ WILLIAM H. WRIGHT, JR. Director February 19, 1997
- -----------------------------------------------------
William H. Wright, Jr.
</TABLE>
II-6
<PAGE> 43
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER
------- ----------------------- ------
<C> <S> <C>
1.1(1) -- Form of Underwriting Agreement for Securities
4.1(2) -- Series A Junior Participating Preferred Stock Purchase
Rights
4.2(3) -- Senior Indenture
4.3(3) -- Form of Senior Note (included in Exhibit 4.2)
4.4(1) -- Subordinated Indenture
4.5(1) -- Form of Subordinated Note (included in Exhibit 4.4)
4.6(4) -- Form of Articles of Amendment for Preferred Stock
4.7(5) -- Specimen Preferred Stock Certificate
4.8(6) -- Articles of Amendment for PRIDES
4.9(7) -- Specimen Certificate of PRIDES
4.10(1) -- Specimen Common Stock Certificate
4.11(1) -- Form of Deposit Agreement
4.12(1) -- Form of Depositary Receipt (included in Exhibit 4.11)
5.1(1) -- Opinion of Stroock & Stroock & Lavan LLP regarding
legality of securities being registered
5.2(1) -- Opinion of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation) regarding legality of
securities being registered
12.1(8) -- Statement of Computation of Ratio of Earnings to Fixed
Charges
12.2(9) -- Statement of Computation of Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividends
15.1(1) -- Letter of Deloitte & Touche LLP regarding unaudited
financial information
23.1(1) -- Consent of Stroock & Stroock & Lavan LLP (included in
Exhibit 5.1)
23.2(1) -- Consent of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation) (included in Exhibit 5.2)
23.3(1) -- Consent of Deloitte & Touche LLP
24.1(1) -- Powers of Attorney (included in Part II of this
Registration Statement)
25.1(1) -- Statement of Eligibility of Senior Trustee on Form T-1
25.2(1) -- Statement of Eligibility of Subordinated Trustee on Form
T-1
</TABLE>
- ---------------
(1) Filed herewith.
(2) Incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A filed on August 5, 1994.
(3) Incorporated by reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K filed on June 16, 1995.
(4) Incorporated by reference to Exhibit 4.7 to the Company's Registration
Statement on Form S-3 (Registration No. 33-60367) filed on June 19, 1995.
(5) Incorporated by reference to Exhibit 4.8 to the Company's Registration
Statement on Form S-3 (Registration No. 33-60367) filed on June 19, 1995.
(6) Incorporated by reference to Exhibit 4.9 to the Company's Registration
Statement on Form S-3 (Registration No. 33-60367) filed on June 19, 1995.
(7) Incorporated by reference to Exhibit 4.4 to the Company's Current Report on
Form 8-K filed on June 16, 1995.
(8) Incorporated by reference to Exhibit 12.1 to the Company's Current Report
on Form 8-K filed on December 5, 1996.
(9) Incorporated by reference to Exhibit 12.2 to the Company's Current Report
on Form 8-K filed on December 5, 1996.
<PAGE> 1
EXHIBIT 1.1
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
February 19, 1997
To: The Underwriters named
in the within mentioned
Terms Agreement
Dear Sirs:
United Companies Financial Corporation, a Louisiana corporation
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell from time to time its senior debt securities, subordinated debt
securities, convertible subordinated debt securities (collectively, the "Debt
Securities"), preferred stock, par value $2.00 per share (the "Preferred
Stock"), and common stock, par value $2.00 per share (the "Common Stock"), in
one or more offerings on terms determined at the time of sale. The Preferred
Stock may be deposited by the Company against delivery of depositary receipts
(the "Receipts") to be issued by a depositary (the "Depositary") under a deposit
agreement (the "Deposit Agreement") among the Company, such Depositary and the
holders from time to time of the Receipts, and, in such event, the Receipts will
evidence depositary shares (the "Depositary Shares" and collectively with the
Preferred Stock and the Common Stock, the "Equity Securities") and each
Depositary Share will represent a fractional interest in a share of Preferred
Stock as specified in the Deposit Agreement and evidenced by a Receipt. The
Equity Securities and Debt Securities, all registered under the Registration
Statement (as defined below), are hereinafter collectively referred to as the
"Registered Securities." If specified in a Terms Agreement (as defined below),
the Company proposes to grant to the underwriters an option to purchase up to
that amount of Registered Securities specified in such Terms Agreement (herein
called the "Option Securities"). The Debt Securities will be issued under
either an indenture dated as of October 1, 1994, (the "Senior Indenture"),
between the Company and The First National Bank of Chicago, as Trustee, or an
indenture dated as of February 19, 1997, between the Company and The Bank of New
York, as Trustee, (the "Subordinated Indenture", and together with the Senior
Indenture, the "Indentures"). Each
<PAGE> 2
2
issue of Debt Securities may vary as to aggregate principal amount, maturity
date or dates, interest rate or rates and timing of payments thereof,
redemption provisions, conversion or exchange provisions and sinking fund
requirements, if any, covenants and any other variable terms which the
Indentures contemplate may be set forth in a supplemental indenture to the
Senior Indenture or Subordinated Indenture, as the case may be, (each, a
"Supplemental Indenture"). The Preferred Stock will be issued in one or more
series, which series may vary as to voting rights, dividends, optional and
mandatory redemption provisions, liquidation preference and conversion or
exchange provisions, if any, and any other terms, with all such terms for any
particular series or issue of the Preferred Stock being determined at the time
of issue. The Registered Securities (together with (i) the Option Securities
and (ii) any Debt Securities or shares of Equity Securities (the "Underlying
Securities") issuable upon conversion or exchange of Registered Securities (the
"Convertible Securities")) involved in any such offering are hereinafter
referred to as the "Securities."
Whenever the Company determines to make an offering of
Securities, it will enter into an agreement substantially in the form of
Exhibit A(I) or Exhibit A(II) hereto (the "Terms Agreement") providing for the
sale of such Securities (the "Offered Securities") to, and the purchase and
offering thereof by, the underwriter or underwriters named therein (the
"Underwriter" or "you", which terms shall include the underwriter or
underwriters named therein whether acting alone in the sale of such Offered
Securities or as members of an underwriting syndicate). The Terms Agreement
relating to each offering of Securities may take the form of an exchange of any
standard form of written telecommunication and shall specify the principal
amount of Debt Securities or number of shares of Equity Securities to be issued
and their terms, the name or names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof) and the
principal amount of Debt Securities or number of shares of Equity Securities
which each severally agrees to purchase, the name or names of the Underwriters
acting as manager or co-managers in connection with such offerings, if any (the
"Representatives", which term shall include each Underwriter in the event that
there shall be no manager or co-manager), the price at which the Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price, any delayed delivery arrangements, the time and place of
delivery and payment and such other applicable information as is indicated in
Exhibit A(I) or Exhibit A(II) hereto as agreed upon by the Company and the
Underwriters. This Agreement, the applicable Terms Agreement, any applicable
Indenture and any related Supplemental Indenture, and the Deposit Agreement, if
applicable, are hereinafter referred to collectively as the "Operative
Documents."
<PAGE> 3
3
Each offering of the Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement and this Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Offered Securities.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-______), including a prospectus, relating to the Securities and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"), and has filed such pre-
effective amendments thereto as may have been required to the date hereof.
Such registration statement, as so amended, has been declared effective by the
Commission, and the Indentures, if applicable, have been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement, as amended to the date such registration statement has been declared
effective, including any documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act which were filed under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), on or before the effective
date of the registration statement, is hereinafter called the "Registration
Statement," and such prospectus, as such prospectus is supplemented on or after
the date of the applicable Terms Agreement and prior to the related Closing
Time (as defined in Section 2(b) hereof), by any prospectus supplement relating
to the Offered Securities, including by any such prospectus supplement in the
form first filed or to be filed on or after the date of the related Terms
Agreement pursuant to Rule 424(b) under the 1933 Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act which were filed under the 1934 Act on or before the date of such
prospectus supplement (any such prospectus supplement, including such
incorporated documents, in the form first filed on or after the date of the
related Terms Agreement pursuant to Rule 424(b) is hereinafter called the
"Prospectus Supplement"), is hereinafter called the "Prospectus". All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements, if any, to the
Registration Statement, the Prospectus or a Prospectus Supplement (and all
other references of like import) shall be deemed to mean and include the filing
of any document under the 1934 Act after the effective date of the Registration
Statement or the issue date of the Prospectus or Prospectus Supplement, as the
case may be, and prior to the related Closing Time which is deemed to be
incorporated therein pursuant to Item 12 of Form S-3 under the 1933 Act.
<PAGE> 4
4
Capitalized terms used herein and not otherwise defined are
used herein as defined in the applicable Indenture, if any, (or, during the
period of time following the date of this Agreement and prior to the applicable
Closing Time, as defined in the form of applicable Indenture, if any, last
filed by the Company with the Commission).
Section 1. Representations and Warranties. (a) The Company
represents and warrants at and as of the date hereof, as of the date of the
applicable Terms Agreement and as of the Closing Time (in each case, the
"Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement, at the time it became
effective, and the prospectus contained therein, and any amendments
thereof and supplements thereto filed prior to the related Closing
Time, conformed in all material respects to the requirements of the
1933 Act and the rules and regulations of the Commission thereunder;
on the date of the related Terms Agreement and as of the related
Closing Time, the Registration Statement and the Prospectus relating
to the Offered Securities, and any amendments thereof and supplements
thereto, will conform in all material respects to the requirements of
the 1933 Act and the rules and regulations of the Commission
thereunder; the Registration Statement, at the time it became
effective (or, if an amendment to the Registration Statement or an
annual report on Form 10- K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or as of
the most recent such filing, as the case may be), did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Prospectus, on the date of any filing
pursuant to Rule 424(b) and the Prospectus (as supplemented) as of the
related Closing Time, will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any of you expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which shall constitute the Statement of Eligibility under the 1939 Act
(Form T-1) of either Trustee under the Indentures, if any.
(ii) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were
<PAGE> 5
5
or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act, and
the rules and regulations of the Commission thereunder.
(iii) Deloitte & Touche LLP or such other nationally
recognized independent public accountants who are reporting upon the
audited financial statements and schedules included or incorporated by
reference in the Registration Statement are independent public
accountants as required by the 1933 Act.
(iv) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(v) (A) The consolidated financial statements and the
related notes of the Company included or incorporated by reference in
(i) the Registration Statement, including the prospectus contained
therein, at the time the Registration Statement became effective and
(ii) the Prospectus relating to the Offered Securities as of the issue
date of the related Prospectus Supplement and the Prospectus (as
supplemented) as of the Closing Time for the related Offered
Securities, present or will present, as the case may be, fairly, in
all material respects, the consolidated financial position of the
Company and its consolidated subsidiaries, considered as one
enterprise, as of the respective dates indicated and the consolidated
results of operations and cash flows and stockholders' equity and the
other information purported to be shown therein of the Company and its
consolidated subsidiaries, considered as one enterprise, for the
respective periods specified; (B) such financial statements and
related notes have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (unless otherwise disclosed in a note); and (C) the
financial statement schedules incorporated by reference in the
Registration Statement present fairly, in all material respects, the
information required to be stated therein.
(vi) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Louisiana, has corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing are not
reasonably likely to, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
properties, assets, business or
<PAGE> 6
6
results of operations of the Company and its subsidiaries, considered
as one enterprise.
(vii) Each subsidiary of the Company has been duly
incorporated and, other than Foster Mortgage Corporation ("FMC"), is
validly existing as a corporation in good standing under the law of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing are not reasonably likely to,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), properties, assets, business
or results of operations of the Company and its subsidiaries,
considered as one enterprise.
(viii) Except as otherwise disclosed in the Prospectus and
other than the senior preferred stock of FMC, all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized, is validly issued, fully paid and non-assessable and,
except for director qualifying shares, is owned by the Company,
directly or through one or more subsidiaries of the Company, free and
clear of any lien, mortgage, pledge, encumbrance, claim or equity.
(ix) The Company has all of the requisite corporate power
and authority to execute, issue and deliver the Securities and to
incur and perform its obligations provided for therein; as of the date
of the applicable Terms Agreement, the Debt Securities, if any, will
have been duly authorized by the Company and, when executed, issued
and authenticated in the manner provided for in the applicable
Indenture and related Supplemental Indenture, if any, and delivered as
provided for in this Agreement and the applicable Terms Agreement,
will have been duly executed, issued and delivered by the Company and
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture and enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; as of
the date of the applicable Terms Agreement, all Securities, if any,
that are Equity Securities, when issued, delivered and sold in
accordance with the Terms Agreement, will be duly and validly issued
and outstanding, fully paid and
<PAGE> 7
7
non-assessable, and will not have been issued in violation of or be
subject to any preemptive rights; as of the date of the applicable
Terms Agreement, if any Securities to be issued are convertible or
exchangeable, the Underlying Securities issuable upon conversion or
exchange will be duly and validly authorized, and, if Equity
Securities, (A) will have been duly reserved for issuance upon
conversion or exchange of the Securities, and (B) when issued upon the
conversion or exchange of the Securities, will be duly and validly
issued and fully paid and non-assessable; and the Securities conform
in all material respects to the description thereof contained in the
Prospectus (as supplemented).
(x) If the Offered Securities are Debt Securities or are
convertible or exchangeable for Debt Securities, the Company has all
of the requisite corporate power and authority to execute and deliver
the Indentures, if any, and to perform its obligations provided for
therein; as of the date of the applicable Terms Agreement and as of
the Closing Time for the related Offered Securities, the Company will
have all requisite corporate power and authority to execute and
deliver the related Supplemental Indenture and to perform its
obligations provided for therein; the Indentures, if any, have been
duly authorized by the Company, will be substantially in the forms
heretofore delivered to you and, when executed and delivered by the
Company and assuming due execution and delivery by the Trustees, will
constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; and
the Indentures conform in all material respects to the descriptions
thereof contained in the Prospectus (as supplemented) as of the date
of the applicable Terms Agreement, and as of the Closing Time for the
related Offered Securities, the related Supplemental Indenture, if
any, will have been duly authorized by the Company and will constitute
the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(xi) If the Offered Securities include Depositary Shares, the
Company has all of the requisite corporate power and
<PAGE> 8
8
authority to execute and deliver the Deposit Agreement and to perform
its obligations provided for therein; the Deposit Agreement has been
duly authorized by the Company, will be substantially in the form
heretofore delivered to you and, when executed and delivered by the
Company and assuming due execution and delivery by the Depositary,
will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; and
the Deposit Agreement conforms in all material respects to the
description thereof contained in the Prospectus (as supplemented) as
of the date of the applicable Terms Agreement.
(xii) All of the outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully paid
and non-assessable.
(xiii) Except as disclosed in the Prospectus (as
supplemented), there are no holders of securities (debt or equity) of
the Company, or holders of rights (including preemptive rights),
warrants or options to obtain securities of the Company, who have the
right to request the Company to register securities held by them under
the 1933 Act.
(xiv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby or in any amendment
thereof or supplement thereto, there has not been (A) any material
adverse change in the condition (financial or otherwise), properties,
assets, business or results of operations of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any of its subsidiaries, other than in the ordinary
course of business, that is reasonably likely to have a material
adverse effect on the condition (financial or otherwise), properties,
assets, business or results of operations of the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock, other than regular quarterly dividends.
(xv) Neither the Company nor any of its subsidiaries is (A)
in violation of its or any of their articles or certificates of
incorporation or by-laws or, other than FMC, in default (nor has an
event occurred that with notice or passage of time or both would
constitute such a default) in
<PAGE> 9
9
the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or its subsidiaries is subject or by
which any of them or any of their properties may be bound or affected,
(B) other than FMC, in violation of any existing applicable law,
ordinance, regulation, judgment, order or decree of any government,
governmental instrumentality, arbitrator or court, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties or (C) other than FMC, in each
case to the knowledge of the Company, in violation of or has violated
any permit, certificate, license, order or other approval or
authorization required in connection with the operation of its
business that, with respect to clause (A), (B) or (C) of this
sentence, are not reasonably likely to (individually or in the
aggregate) (1) adversely affect the legality, validity or
enforceability of this Agreement, the applicable Terms Agreement, or
the applicable Indenture and related Supplemental Indenture, if any,
(2) have a material adverse effect on the condition (financial or
otherwise), properties, assets, business or results of operations of
the Company and its subsidiaries, considered as one enterprise, or (3)
impair the ability of the Company to fully perform on a timely basis
any obligations that it has under this Agreement, the applicable Terms
Agreement, the applicable Indenture or the related Supplemental
Indenture, if any.
(xvi) The issuance, sale and delivery of the Offered
Securities, the execution, delivery and performance of the other
Operative Documents, the compliance by the Company with the terms
therein and the consummation by the Company of the transactions
contemplated thereby and in the Registration Statement do not and will
not result in a violation of any of the terms or provisions of the
articles or certificates of incorporation or by-laws of the Company or
any of its subsidiaries, and do not and will not conflict with, or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, (A) any indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which any of them or any of their properties or assets is bound,
except for such conflicts, breaches, violations or defaults that are
not reasonably likely to have a material adverse effect on the
condition (financial or otherwise), properties, assets, business or
results of operations of the Company and its subsidiaries, considered
as one enterprise, or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their
properties.
<PAGE> 10
10
(xvii) No authorization, approval, consent or order of, or
qualification with, any governmental body or agency is required to be
obtained or made by the Company for (A) the due authorization,
execution, delivery and performance by the Company of each of the
Operative Documents to which it is or will be a party or (B) the valid
authorization, issuance, sale and delivery of the Offered Securities,
except such as may be required by the securities or blue sky laws of
the various states in connection with the offer and sale of the
Securities.
(xviii) There is no action, suit, investigation or proceeding
before or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
or any of their properties that (A) is required to be disclosed in the
Prospectus and is not so disclosed in the Prospectus (as
supplemented), (B) except as disclosed in the Prospectus (as
supplemented), is reasonably likely to result in any material adverse
change in the condition (financial or otherwise), properties, assets,
business or results of operations of the Company and its subsidiaries,
considered as one enterprise, (C) seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance and sale of
the Securities or the execution and delivery of this Agreement, the
applicable Terms Agreement or the applicable Indenture or related
Supplemental Indenture, if any, or any of the transactions
contemplated hereby or thereby or (D) questions the legality or
validity of any such transaction or seeks to recover damages or obtain
other relief in connection with any such transaction, and, in each
case to the knowledge of the Company, there is no valid basis for any
such action, suit, investigation or proceeding except as otherwise
disclosed in the Prospectus (as supplemented).
(xix) There are no statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(xx) Each of the Company and its subsidiaries other than FMC
has all necessary consents, authorizations, approvals, orders,
licenses, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus (as supplemented), except to the extent
that the failure to so obtain or file is not reasonably likely to have
a material adverse effect on the Company and its subsidiaries,
considered as one enterprise, and neither
<PAGE> 11
11
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
consent, authorization, approval, order, license, certificate or
permit which singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, are reasonably likely to
result in any material adverse change in the condition (financial or
otherwise), properties, assets, business or results of operations of
the Company and its subsidiaries, considered as one enterprise.
(xxi) Each of the Company and its subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other proprietary or confidential information,
systems or procedures, whether patented or unpatented), trademarks,
service marks and trade names (collectively, "intellectual property")
presently employed by them in connection with the business now
operated by them, except where the failure to own or possess or have
the ability to acquire any such intellectual property is not
reasonably likely to have a material adverse effect on the condition
(financial or otherwise), properties, assets, business or results of
operations of the Company and its subsidiaries, considered as one
enterprise, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing that,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, is reasonably likely to result in any
material adverse change in the condition (financial or otherwise),
properties, assets, business or results of operations of the Company
and its subsidiaries, considered as one enterprise.
(xxii) The Company has not taken and will not take, directly
or indirectly, any action designed to or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Securities.
(xxiii) The Company is not an investment company within the
meaning of the Investment Company Act of 1940, as amended.
(xxiv) The shares of Common Stock, if any, described in the
applicable Terms Agreement have been duly authorized for listing on
The New York Stock Exchange, Inc.
(b) Any certificate signed by any officer of either the
Company or any of its subsidiaries and delivered to you or to your counsel at
the Closing Time pursuant to this Agreement or the applicable Terms Agreement
or the transactions contemplated hereby or thereby shall be deemed a
representation and warranty by the Company or such subsidiary of the Company,
as the case may be, to each of you as to the matters covered thereby.
<PAGE> 12
12
Section 2. Sale and Delivery to the Underwriters: Closing.
(a) Your several commitments to purchase Securities pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained, and shall be subject to the terms and
conditions herein set forth.
(b) Payment of the purchase price for, and delivery of, any
Securities to be purchased by you shall be made at the place set forth in the
applicable Terms Agreement or at such other place as shall be agreed upon by
the Company and you, on the third full business day (unless postponed pursuant
to Section 10) following the date of the applicable Terms Agreement or at such
other time not more than ten full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being
herein called the "Closing Time"). Payment shall be made to the Company by
wire transfer payable in same-day federal funds to an account specified by the
Company in the applicable Terms Agreement or by certified or official bank
check or checks in New York Clearing House funds payable to the order of the
Company, as specified by the Company in the applicable Terms Agreement, against
delivery of the Securities to the Representatives for the respective accounts
of the Underwriters of the Securities to be purchased by them.
(c) The Debt Securities shall be in such denominations
($1,000 or an integral multiple thereof) and registered in such names as the
Representatives may request in writing at least two full business days prior to
the Closing Time. The Debt Securities, which may be in temporary form, and the
shares of Equity Securities will be made available in New York City for
examination and packaging by the Representatives not later than 10:00 A.M., New
York City time, on the business day prior to the Closing Time.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to you to
purchase, severally and not jointly, up to that amount of the Option
Securities, as shall be specified in the Terms Agreement, from the Company at
the same price as you shall pay for the relevant Securities. Said option may
be exercised only to cover over-allotments in the sale of the Securities by you
and may be exercised in whole or in part at any time (not more than once) on or
before the thirtieth day after the date of the Terms Agreement upon written or
telegraphic notice by you to the Company setting forth the amount of the Option
Securities as to which you are exercising the option. The amount of Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total amount of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Securities, as adjusted
by you in such manner as you deem advisable to avoid fractional shares/units.
<PAGE> 13
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If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Debt Securities from
the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto, with such changes
therein as the Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to the Representatives at Closing Time
a fee equal to that percentage of the principal amount of Debt Securities for
which Delayed Delivery Contracts are made at Closing Time as is specified in
the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types which will be set forth in the applicable
Prospectus Supplement. At Closing Time the Company will enter into Delayed
Delivery Contracts (for not less than the minimum principal amount of Debt
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by you and previously approved by the
Company as provided below, but not for an aggregate principal amount of Debt
Securities in excess of that specified in the applicable Terms Agreement. You
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
The Representatives will submit to the Company, at least three
business days prior to Closing Time, the names of any institutional investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Debt Securities to be purchased by each
of them and the Company will advise the Representatives, at least two business
days prior to Closing Time, of the names of the institutions with which the
making of Delayed Delivery Contracts is approved by the Company and the
principal amount of Debt Securities to be covered by each such Delayed Delivery
Contract.
The principal amount of Debt Securities agreed to be purchased
by the respective Underwriters pursuant to the applicable Terms Agreement shall
be reduced by the principal amount of Debt Securities covered by Delayed
Delivery Contracts, as to each Underwriter as set forth in a written notice
delivered by the Representatives to the Company; provided, however, that the
total principal amount of Debt Securities to be purchased by all Underwriters
shall be the total amount of Debt Securities covered by the applicable Terms
Agreement, less the principal amount of Debt Securities covered by Delayed
Delivery Contracts.
Section 3. Certain Covenants of the Company. The Company
covenants with each of you as follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Debt Securities or the number of shares
of Equity Securities covered thereby and their terms not otherwise
specified in the applicable Indenture, if any, the names of the
Underwriters and the principal amount of Debt Securities or the number
of shares
<PAGE> 14
14
of Equity Securities which each of them severally has agreed to
purchase, the price at which the Offered Securities are to be
purchased by you from the Company, the initial public offering price,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representatives and
the Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule
424 under the 1933 Act and will furnish to each of you as many copies
of the Prospectus and such Prospectus Supplement as the
Representatives shall reasonably request.
(b) The Company has furnished or will furnish to you, without
charge, as many signed and conformed copies of the Registration
Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) and signed copies of all
consents and certificates of experts and, during the period mentioned
in paragraph (f) below, as many copies of the Prospectus and any
supplements and amendments thereto, in each case as soon as available,
as you may reasonably request.
(c) From the date of a Terms Agreement, and for so long as a
Prospectus is required to be delivered in connection with the sale of
Offered Securities covered by such Terms Agreement, the Company will
give you notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time
in advance of filing and will not file any such amendment or
supplement or use any such prospectus to which you or your counsel
reasonably shall object.
(d) From the date of a Terms Agreement, and for so long as a
Prospectus is required to be delivered in connection with the sale of
Offered Securities covered by such Terms Agreement, the Company will
notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of
the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference into the
Registration Statement or Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any Prospectus Supplement, (iv) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by
<PAGE> 15
15
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(e) Except as provided in the applicable Terms Agreement,
between the date of any Terms Agreement and termination of any trading
restrictions specified in the applicable Terms Agreement, if any, or
Closing Time, whichever is later, with respect to (i) the Debt
Securities covered thereby, the Company will not, without your prior
consent or as otherwise permitted by the Terms Agreement, offer or
sell, or enter into any agreement to sell, any debt securities of the
Company with a maturity of more than one year (it being understood
that the Company may enter into lending agreements with commercial
banks and other lenders and make borrowings thereunder, which
borrowings may have maturities greater than one year), including
additional Debt Securities, (ii) the Equity Securities covered
thereby, the Company will not, without your prior consent or as
otherwise permitted by the Terms Agreement, offer or sell, or enter
into any agreement to sell, any shares of its Equity Securities or any
securities convertible into or exchangeable or exercisable for or any
right to purchase or acquire any shares of Equity Securities (it being
understood that grants of stock options to directors, officers and
employees of the Company or a subsidiary thereof, and issuances
pursuant to the exercise of such options, shall not be precluded by
this subsection (e)) and (iii) the Underlying Securities covered
thereby, the Company will not, without your prior consent or as
otherwise permitted by the Terms Agreement, offer or sell, or enter
into any agreement to sell, any securities of the same class as the
Underlying Securities or any securities convertible into or
exercisable or exchangeable for or any right to purchase or acquire
Underlying Securities or securities of such class.
(f) The Company will comply to the best of its ability with
the 1933 Act, the 1934 Act and the 1939 Act and the regulations
thereunder so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement, the applicable Terms
Agreement and in the Prospectus. If at any time when, in the opinion
of your counsel, the Prospectus is required by law to be delivered in
connection with sales of the Offered Securities by you or by a dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, the Company shall
forthwith prepare and furnish, at the Company's
<PAGE> 16
16
expense, to each of you and to the dealers (whose names and addresses
you will furnish to the Company) to which Offered Securities may have
been sold by you and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus as so amended or supplemented
will comply with the law.
(g) The Company will endeavor to qualify the Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as you shall reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Securities; provided, however, that the Company
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company
will file such statements and reports as may be required by the laws
of each jurisdiction in which the Securities have been qualified as
above provided.
(h) With respect to each sale of Offered Securities, the
Company will make generally available to its security holders as soon
as practicable but in any event not later than 90 days after the close
of the period covered thereby a consolidated earning statement for a
twelve-month period beginning after the effective date (as defined in
Rule 158(c) under the 1933 Act) of the Registration Statement relating
to such Securities, but not later than the first day of the Company's
fiscal quarter next following such effective date and that otherwise
satisfies the provisions of Section 11(a) of the 1933 Act and the
regulations thereunder.
(i) The Company will use the proceeds received from the sale
of the Offered Securities in the manner specified in the Prospectus
under the heading "Use of Proceeds."
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act within the time periods required under the
1934 Act.
(k) For a period of five years after the applicable Closing
Time, the Company will furnish to each of you copies of all annual
reports, quarterly reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the
<PAGE> 17
17
Commission, and such other documents, reports and information as shall
be furnished by the Company to the holders of the Securities or to
security holders of its respective publicly issued securities
generally.
(1) Upon the conversion or exchange of any Convertible
Securities for shares of Common Stock, the Company will use its best
efforts to cause such shares of Common Stock to be duly listed on the
New York Stock Exchange, Inc.
Section 4. Payment of Expenses. The Company will pay and
bear all costs and expenses incident to the performance of its obligations
under this Agreement and each related Terms Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and schedules and exhibits), as originally filed and as
amended and the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereto to you, (b) the preparation, printing and
distribution of this Agreement (including each related Terms Agreement), the
Offered Securities, any related Indentures, a survey of state securities or
blue sky laws (the "Blue Sky Survey"), (c) the delivery of the Offered
Securities to you, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., if any, including filing fees and fees and disbursements of your counsel
in connection therewith and in connection with the Blue Sky Survey and any
legal investment survey, (f) any fees charged by rating agencies for rating the
Offered Securities, (g) the fees and expenses of any Trustees, including the
fees and disbursements of counsel for any Trustees, in connection with the
related Indentures and the Debt Securities, (h) any transfer agent's fees and
(i) the listing, if any, of the Securities on any securities exchange or any
quotation of the Securities on the Nasdaq National Market. Subject to the
provisions of the following paragraph, you agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of your
obligations under this Agreement and the applicable Terms Agreement not payable
by the Company pursuant to the preceding sentence, including without limitation
the fees and disbursements of your counsel.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company shall reimburse each of you up
to an aggregate amount to be set forth in the related Terms Agreement for all
of your out-of-pocket expenses, including the reasonable fees and disbursements
of your counsel, upon receipt of itemized statements therefor.
Section 5. Conditions of Underwriters' Obligations. The
obligations of each of you to purchase and pay for the Offered Securities
pursuant to any related Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained herein (including those
contained in the applicable Terms Agreement) or in certificates of any officer
of the Company delivered pursuant to the provisions hereof, to the
<PAGE> 18
18
performance by the Company of its covenants and other obligations hereunder and
to the following further conditions:
(a) At the applicable Closing Time, (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act and no proceedings for that purpose
shall have been instituted and shall be pending or, to your knowledge
or the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
satisfaction of your counsel.
(b) At the applicable Closing Time, each of you shall have
received a signed opinion of Stroock & Stroock & Lavan LLP, or such
other outside counsel of recognized standing reasonably acceptable to
the Underwriters that may opine on matters of New York law and federal
securities law, counsel for the Company, dated as of the applicable
Closing Time, in form and substance satisfactory to your counsel, to
the effect that:
(i) The Indentures and the related Supplemental
Indenture(s), if any, described in the applicable Terms
Agreement are the legally valid and binding agreements of the
Company, enforceable against the Company in accordance with
their terms except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing;
(ii) The Debt Securities, if any, covered by the
applicable Terms Agreement are in the form contemplated by the
applicable Indenture and the related Supplemental
Indenture(s), and, when executed and authenticated in
accordance with the terms of the applicable Indenture and
delivered to and paid for by you in accordance with the terms
of this Agreement as supplemented by the applicable Terms
Agreement, will be legally valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms except as enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(iii) The Indentures, if any, have been duly
qualified under the 1939 Act;
<PAGE> 19
19
(iv) If the Offered Securities include Depositary
Shares, the Deposit Agreement is the legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(v) If the Offered Securities include Depositary
Shares, the Depositary Shares covered by the applicable Terms
Agreement are in the form contemplated by the Deposit
Agreement, and, when executed and authenticated in accordance
with the terms of the Deposit Agreement and delivered to and
paid for by you in accordance with the terms of this Agreement
as supplemented by the applicable Terms Agreement, and
assuming the due execution by the Depositary of the Deposit
Agreement and the Receipts in accordance with the terms of the
Deposit Agreement (the Company having deposited the related
Preferred Stock with the Depositary pursuant to the Deposit
Agreement), will be legally valid and binding interests in
such related Preferred Stock;
(vi) The Company is not an investment company
within the meaning of the Investment Company Act of 1940, as
amended;
(vii) If the Offered Securities are Debt Securities
or are convertible or exchangeable for Debt Securities, the
statements set forth in the Prospectus under the caption
"Description of Debt Securities," insofar as they constitute
summaries of documents, are accurate in all material respects
and the Indentures, if any, and the Offered Securities covered
by the applicable Terms Agreement conform in all material
respects to the descriptions thereof in the Prospectus;
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no
proceedings therefor have been initiated or threatened by the
Commission; and any required filing of the Prospectus pursuant
to Rule 424(b) under the 1933 Act has been made in accordance
with Rule 424(b) under the 1933 Act; and
(ix) The Registration Statement (excluding the
documents incorporated therein by reference) and the
Prospectus comply as to form in all material respects
<PAGE> 20
20
with the requirements for registration statements on Form S-3 under
the 1933 Act; it being understood, however, that such counsel
expresses no opinion with respect to the financial statements,
schedules and other financial and statistical data included or
incorporated in the Registration Statement or the Prospectus or with
respect to the Statement as to the Eligibility of the Trustee on Form
T-1, if any. In passing upon the compliance as to form of the
Registration Statement and the Prospectus, such counsel has assumed
that the statements made therein are correct and complete.
In addition, such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and the Representatives, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon, and does
not assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus and
have not been called on to make and have not made any independent check or
verification thereof, during the course of such participation (relying as to
materiality to a large extent upon the statements of officers and other
representatives of the Company), no facts came to such counsel's attention that
caused such counsel to believe that the Registration Statement, at the time it
became effective, or if an amendment to the Registration Statement or an annual
report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at the time
such post-effective amendment became effective or as of the most recent filing,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (including the documents incorporated by
reference therein but giving effect to Rule 412 under the 1933 Act), as of the
date of the most recent Prospectus Supplement or the Prospectus (as
supplemented) as of the applicable Closing Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that such counsel expresses no belief with
respect to the financial statements and notes and schedules thereto and other
financial, accounting, tax and statistical data included in (or incorporated
in) the Registration Statement or the Prospectus or with respect to the
Statement of Eligibility of the Trustee on Form T-1, if any.
<PAGE> 21
21
In rendering such opinion, Stroock & Stroock & Lavan LLP (or
such other counsel) (i) may rely as to factual matters upon
certificates or written statements from officers or other appropriate
representatives of the Company or upon certificates of public
officials, (ii) may rely (to the extent such counsel deems proper and
specifies in their opinion), as to matters involving the application
of the laws of the State of Louisiana, upon the opinion of Kantrow,
Spaht, Weaver & Blizter (A Professional Law Corporation) or such other
outside counsel of recognized standing reasonably acceptable to the
Underwriters, that may opine on matters of Louisiana law, and (iii)
need not express any opinion with regard to the laws of any
jurisdiction other than the federal law of the United States and the
law of the State of New York. Further, such opinion may contain
assumptions, limitations, exceptions and restrictions which are
reasonably satisfactory to you and your counsel.
(c) At the applicable Closing Time, each of you shall have
received a signed opinion of Kantrow, Spaht, Weaver & Blizter (A
Professional Law Corporation), or such other outside counsel of
recognized standing reasonably acceptable to the Underwriters that may
opine on matters of Louisiana law, counsel for the Company, dated as
of the applicable Closing Time, in form and substance satisfactory to
your counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Louisiana, with corporate power and authority to own
its property and to conduct its business as described in the
Prospectus. The Company is duly qualified as a foreign
corporation in each of the respective jurisdictions set forth
on Exhibit A to such opinion and officers of the Company have
submitted to such counsel a certificate, a copy of which is
attached to such opinion as Exhibit B, stating that, in their
opinion, such jurisdictions are the only jurisdictions in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified is not reasonably likely
to have a material adverse effect on the Company and its
subsidiaries considered as one enterprise;
(ii) Each significant subsidiary (as such term is
defined in Regulation S-X) of the Company has been duly
incorporated, is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation in each of the
respective jurisdictions set forth on Exhibit A to such
opinion
<PAGE> 22
22
and officers of such significant subsidiary have submitted to such
counsel a certificate, a copy of which is attached to such opinion as
Exhibit B, stating that, in their opinion, such jurisdictions are the
only jurisdictions in which the conduct of its business or its
ownership or leasing of property requires such qualifications, except
to the extent that the failure to be so qualified is not reasonably
likely to have a material adverse effect on the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each subsidiary (other than the senior
preferred stock of FMC) has been duly authorized and validly issued,
is fully paid and non-assessable and all of the issued and outstanding
capital stock of such significant subsidiaries (other than the senior
preferred stock of FMC), except for director qualifying shares is
owned of record by the Company, directly or through subsidiaries, and
is free and clear of any pledge, lien, encumbrance, claim or equity;
United Companies Lending Corporation is a corporation in good standing
under the laws of the State of Louisiana;
(iii) The shares of Equity Securities, if any,
described in the applicable Terms Agreement have been duly
authorized and validly issued, are fully paid and
non-assessable and have not been issued in violation of or
subject to any preemptive rights;
(iv) If the Offered Securities are Equity
Securities or are convertible or exchangeable for Equity
Securities, the statements set forth in the Prospectus under
the caption "Description of Capital Stock," insofar as they
constitute summaries of documents, are accurate in all
material respects and the Offered Securities covered by the
applicable Terms Agreement conform in all material respects to
the descriptions thereof in the Prospectus;
(v) The shares of Common Stock, if any, described
in the applicable Terms Agreement (other than any such shares
described therein because they are Underlying Securities) have
been duly listed on the New York Stock Exchange, Inc.;
(vi) The Debt Securities, if any, described in the
applicable Terms Agreement have been duly authorized by the
Company;
(vii) The Company has the requisite corporate power
and authority to execute, deliver and perform its obligations
under the Indentures and the related Supplemental
Indenture(s), if any. The Indentures, if any, have been duly
authorized, executed and delivered by the Company;
<PAGE> 23
23
(viii) The Company has the requisite corporate power
and authority to issue and deliver the Offered Securities;
(ix) The Company has the requisite corporate power
and authority to execute, deliver and perform its obligations
under this Agreement and the applicable Terms Agreement. This
Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company;
(x) Neither (A) the execution and delivery by the
Company of each of the Operative Documents to be executed and
delivered by the Company at or prior to the applicable Closing
Time nor (B) the issuance and sale of the Offered Securities
by the Company pursuant to this Agreement, the applicable
Terms Agreement and the Indentures and the related
Supplemental Indentures, if any, will, as of the applicable
Closing Time, result in the violation or breach by the Company
of, or a default under, (1) its articles of incorporation or
by-laws, (2) any federal or Louisiana statute, rule or
regulation applicable to the Company or any of its
subsidiaries (except that no opinion is expressed with respect
to blue sky or state securities laws), (3) any agreement or
other instrument known to such counsel and listed as an
Exhibit to the Company's most recent Annual Report on Form 10-
K for the Company's most recent fiscal year binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries, considered as one enterprise, or
(4) any court or administrative orders, writs, judgments or
decrees applicable to the Company and known to such counsel;
(xi) To the best of such counsel's knowledge, no
consent, approval, authorization or order of, or filing with,
any federal or Louisiana court or governmental body or agency
is required to be obtained or made by the Company or any of
its subsidiaries for the execution and delivery by the Company
of each of the Operative Documents to be executed and
delivered by the Company at or prior to the Closing Time and
the consummation of the issuance and sale of the Offered
Securities by the Company pursuant to this Agreement, the
applicable Terms Agreement and the Indentures and the related
Supplemental Indentures, if any, except such as have been
obtained or made under the 1933 Act and such as may be
required under state securities laws in connection with the
purchase and distribution of such Securities by you;
<PAGE> 24
24
(xii) After due inquiry, such counsel has no
knowledge of any legal or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is
a party or to which any of the properties of the Company or
any of its subsidiaries is subject that is required to be
described in the Registration Statement or the Prospectus and
is not so described therein; or of any statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required;
(xiii) If any Offered Securities to be issued are
convertible or exchangeable, the related Underlying Securities
are duly and validly authorized, have been duly reserved for
issuance upon conversion or exchange of the Offered
Securities, and when issued upon the conversion or exchange of
the Offered Securities, will be duly and validly issued and
fully paid and non-assessable;
(xiv) All of the outstanding shares of capital stock
of the Company have been duly authorized and are validly
issued, fully paid and non-assessable, and except as disclosed
in the Prospectus none of the outstanding shares of capital
stock of the Company are subject to any preemptive or similar
rights; and
(xv) Each of the documents incorporated or deemed
to be incorporated by reference in the Registration Statement,
at the time it was filed with the Commission, complied as to
form in all material respects with the requirements for such
document under the 1934 Act and the regulations thereunder.
In addition, such counsel has participated in conferences with
officers and other representatives of the Company, representatives of
the independent public accountants for the Company, and the
Representatives, at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
and have not been called on to make and have not made any independent
check or verification thereof, during the course of such participation
(relying as to materiality to a large extent upon the statements of
officers and other representatives of the Company), no facts came to
such counsel's attention that caused such counsel to believe that the
Registration Statement, at the time it became effective, or if an
amendment to the Registration
<PAGE> 25
25
Statement or an annual report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time such post-effective amendment
became effective or as of the most recent filing, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (including the
documents incorporated by reference therein but giving effect to Rule
412 under the 1933 Act), as of the date of the most recent Prospectus
Supplement or the Prospectus (as supplemented) as of the applicable
Closing Time, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel expresses no belief
with respect to the financial statements and notes and schedules
thereto and other financial, accounting, tax and statistical data
included in (or incorporated in) the Registration Statement or the
Prospectus or with respect to the Statement of Eligibility of the
Trustee on Form T-1, if any.
In rendering such opinion, Kantrow, Spaht, Weaver & Blizter (A
Professional Law Corporation) (or such other counsel) (i) may rely as
to factual matters upon certificates or written statements from
officers or other appropriate representatives of the Company and its
subsidiaries and upon certificates of public officials and (ii) need
not express any opinion with respect to the laws of any jurisdiction
other than the federal law of the United States and the law of the
State of Louisiana. Further, such opinion may contain assumptions,
limitations, exceptions and restrictions which are reasonably
satisfactory to you and your counsel.
(d) At the Closing Time, each of you shall have received the
favorable opinion of Simpson Thacher & Bartlett as your counsel, dated
as of the applicable Closing Time, to the effect that the opinions
delivered pursuant to Sections 5(b) and 5(c) appear on their face to
be appropriately responsive to the requirements of this Agreement and
the applicable Terms Agreement except, specifying the same, to the
extent waived by you, and with respect to the Securities, this
Agreement and the applicable Terms Agreement, the Indentures, if any,
the Deposit Agreement, if any, the Registration Statement, the
Prospectus, the incorporation and legal existence of the Company and
such other related matters as you may reasonably require. In giving
such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the federal law of the United States,
the law of the State of New York and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory
<PAGE> 26
26
to you. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers or other appropriate
representatives of the Company and its subsidiaries and certificates
of public officials.
(e) At the applicable Closing Time, (i) the Registration
Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be
stated therein under the 1933 Act and the regulations thereunder and
in all material respects shall conform to the requirements of the 1933
Act and the regulations thereunder and the 1939 Act and the
regulations thereunder, and neither the Registration Statement nor the
Prospectus, as they may then be amended or supplemented, shall contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) there shall not have been, since the
respective dates as of which information is given in the Prospectus
(as supplemented), any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), properties, assets, business or results of
operations of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business;
(iii) no action, suit or proceeding at law or in equity shall be
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries that would be required to be set
forth in the Prospectus other than as set forth therein or in any
supplement thereto and no proceedings shall be pending or, to the
knowledge of the Company, threatened against it or any of its
subsidiaries before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling
or finding is reasonably likely to materially adversely affect the
condition (financial or otherwise), properties, assets, business or
results of operations of the Company and its subsidiaries, considered
as one enterprise, other than as set forth in the Prospectus or in any
supplement thereto; (iv) the Company shall have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the applicable Closing Time; and (v) the
other representations and warranties of the Company set forth in
Section l(a) shall be accurate as though expressly made at and as of
the applicable Closing Time. At the applicable Closing Time, each of
you shall have received a certificate of the President or a Vice
President, and the Treasurer or Assistant Treasurer, of the Company,
dated as of the applicable Closing Time, to such effect to such
officer's knowledge.
<PAGE> 27
27
(f) At the time that a Terms Agreement is executed by the
Company, each of you shall have received from Deloitte & Touche LLP or
such other nationally recognized independent public accountants who
are reporting on the audited financial statements and schedules
included or incorporated by reference in the Registration Statement a
letter dated the date thereof and also at the applicable Closing Time
a letter dated the date thereof, in each case in form and substance
satisfactory to the Representatives, containing statements and
information of the type ordinarily included in the accountant's
"comfort letters" to underwriters with respect to financial statements
and certain financial information contained in the Registration
Statement and the Prospectus.
(g) At the applicable Closing Time, your counsel shall have
been furnished with all such documents (including any consents under
any agreements to which the Company is a party), certificates and
opinions as they may reasonably request for the purpose of enabling
them to pass upon the issuance and sale of the Securities as
contemplated in this Agreement and the applicable Terms Agreement and
the matters referred to in Section 5(d) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company, the performance of any of the covenants of
the Company, or the fulfillment of any of the conditions herein and in
the applicable Terms Agreement contained; and all proceedings taken by
the Company at or prior to the applicable Closing Time in connection
with the authorization, issuance and sale of the Offered Securities,
and by the Company at or prior to the applicable Closing Time in
connection with the authorization and delivery of any other Operative
Documents, each as contemplated in this Agreement and the applicable
Terms Agreement, shall be reasonably satisfactory in form and
substance to you and to your counsel.
(h) If the Offered Securities to be sold to you pursuant to
an applicable Terms Agreement are to be listed on any securities
exchange, such Securities shall have been duly authorized for listing
on such exchange on the date of the applicable Terms Agreement,
subject only to official notice of issuance thereof and notice of a
satisfactory distribution of the Securities.
(i) On or after the date of the applicable Terms Agreement
(i) no downgrading shall have occurred in the rating accorded any of
the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization" as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the 1933 Act and
regulations thereunder and (ii) no such organization shall have
publicly announced that it has under surveillance
<PAGE> 28
28
or review, with possible negative implications, its rating of the
Company's debt securities or preferred stock.
(j) Each of the Indentures and the related Supplemental
Indentures, if any, shall have been executed and delivered by all
parties thereto on or prior to the Closing Time, in each case in
substantially the form last filed by the Company with the Commission,
and each such instrument shall be in full force and effect at the
Closing Time.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement or the applicable
Terms Agreement to be fulfilled, this Agreement and the applicable Terms
Agreement may be terminated by you on notice to the Company at any time at or
prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6 and 7 shall
remain in effect.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each of you and each person, if any, who controls
any of you within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of an untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including all
documents incorporated or deemed to be incorporated by reference in
the Registration Statement, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of an untrue statement or alleged untrue statement of a material fact
included in the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever (including
fees and disbursements of counsel chosen by you (except to
<PAGE> 29
29
the extent otherwise expressly provided in paragraph (c) of this
Section 6)) reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
provided, however, that the Company's obligations under this indemnity do not
apply to any loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or omission or alleged untrue statement or omission
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by any of you through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto);
and provided further, that as to any related preliminary prospectus or
preliminary prospectus supplement this indemnity agreement shall not inure to
the benefit of any Underwriter on account of any loss, claim, damage or
liability (or action in respect thereof) arising from the sale of Offered
Securities to any person by that Underwriter if that Underwriter failed to send
or give a copy of the Prospectus, as the same may be amended or supplemented,
to that person within the time required by the 1933 Act, and the untrue
statement or alleged untrue statement of any material fact or omission or
alleged omission to state any material fact in such preliminary prospectus or
preliminary prospectus supplement was corrected in the Prospectus, unless such
failure resulted from non-compliance by the Company with Section 3(b). For
purposes of the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
preliminary prospectus, a preliminary prospectus supplement or the Prospectus
to any person other than a person to whom such Underwriter has delivered such
incorporated documents in response to a written request therefor.
(b) Each of you agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of their
respective officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto)
in reliance
<PAGE> 30
30
upon and in conformity with written information furnished to the Company by you
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers served, but
failure to so notify an indemnifying party shall not relieve it from any
liability that it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. If it so elects within a reasonable time after receipt
of such notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified parties who are defendants
in such action, provided that, if such indemnified party or parties reasonably
determine that there may be legal defenses that are different from or in
addition to those available to such indemnifying party or parties, then such
indemnifying party or parties shall not be entitled to assume such defense. If
the indemnifying party or parties are not entitled to assume the defense of
such action as a result of the proviso to the preceding sentence, counsel for
the indemnifying party or parties shall be entitled to conduct the defense of
such indemnifying party or parties and counsel for the indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(d) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding. No indemnifying party shall be liable for any settlement
that an indemnified party may effect without the consent of the indemnifying
party, which consent shall not be unreasonably withheld.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided for
in Section 6 is for any reason held to be
<PAGE> 31
31
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company and each of you shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company and one or more of you, in such
proportions as will reflect the relative benefits from the offering of such
Securities received by the Company on the one hand and by you, on the other
hand, provided that if the Securities are offered by you at an initial public
offering price set forth in a Prospectus Supplement, the relative benefits
shall be deemed to be such that you shall be responsible for that portion of
the aggregate losses, liabilities, claims, damages and expenses represented by
the percentage that the underwriting commission appearing on the cover page of
the Prospectus Supplement bears to the initial public offering price appearing
thereon and the Company shall be responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls any of you within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as you, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant
to this Agreement will remain operative and in full force and effect regardless
of any termination of the applicable Terms Agreement (including this Agreement
as incorporated by reference therein), or any investigation made by or on
behalf of the Company or any of you or any controlling person and will survive
delivery of and payment for the Securities.
Section 9. Termination of Agreement. (a) The
Representatives may terminate the applicable Terms Agreement (including this
Agreement, as incorporated by reference therein), immediately by notice to the
Company, at any time at or prior to the applicable Closing Time (i) if there
has been, since the respective dates as of which information is given in the
Prospectus, any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or otherwise),
properties, assets, business or results of operations of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any new outbreak of
hostilities or escalation of existing hostilities or other calamity or crisis
the effect of which on the financial markets
<PAGE> 32
32
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended by the Commission, or if trading generally on either the New York
Stock Exchange or the American Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of such exchanges or by order of the
Commission or any other governmental authority or (iv) if a general commercial
banking moratorium has been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the covenants set forth in Section 3 with respect to any offering
of Securities purchased from the Company pursuant to the applicable Terms
Agreement and the provisions of Sections 6 and 7 shall remain in effect.
(c) This Agreement may also terminate pursuant to the
provisions of Sections 2, 5 and 10, with the effect stated in such Sections.
Section 10. Default by One or More of the Underwriters. If
one or more of you shall fail at the applicable Closing Time to purchase the
Securities that such Underwriter or Underwriters are obligated to purchase
pursuant to the applicable Terms Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
substitute underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not
exceed 10% of the aggregate amount of the Securities to be purchased
pursuant to such Terms Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligation proportions
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate amount of Defaulted Securities exceeds
10% of the aggregate amount of the Securities to be purchased pursuant
to such Terms Agreement, such Terms Agreement (including this
Agreement as incorporated by reference therein) shall terminate
without liability on the part of any non-defaulting Underwriter.
<PAGE> 33
33
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of the applicable Terms Agreement, either the Representatives or
the Company shall have the right to postpone the applicable Closing Time for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to you shall be directed to you as provided in the
applicable Terms Agreement. Notices to the Company shall be directed to it c/o
United Companies Financial Corporation, 4041 Essen Lane, Baton Rouge, Louisiana
70809, attention of Dale E. Redman, with copies to Kantrow, Spaht, Weaver &
Blitzer (A Professional Law Corporation), attention of Lee C. Kantrow and
Stroock & Stroock & Lavan LLP, attention of Reed D. Auerbach.
Section 12. Parties. The applicable Terms Agreement and this
Agreement are made solely for the benefit of each of you, the Company and, to
the extent expressed, any person controlling either the Company or any of you,
and the directors of the Company, the officers of the Company who have signed
the Registration Statement, and the executors, administrators, successors and
assigns of such persons and, subject to the provisions of Section 10, no other
person shall acquire or have any right under or by virtue of the applicable
Terms Agreement or this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any of you of the Securities.
All of the obligations of each of you hereunder are several and not joint.
Section 13. Governing Law and Time. This Agreement and each
Terms Agreement shall be governed by the law of the State of New York without
regard to the conflicts of law principles thereof. Specified times of the day
refer to New York City time.
Very truly yours,
UNITED COMPANIES
FINANCIAL CORPORATION
By: /s/ LAURA T. MARTIN
--------------------------------
Name: Laura T. Martin
Title: Senior Vice President
and Treasurer
<PAGE> 34
Exhibit A(I)
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
$___________
Debt Securities
TERMS AGREEMENT
_______ __, 199_
To: United Companies Financial Corporation
4041 Essen Lane
Baton Rouge, Louisiana 70809
Dear Sirs:
Reference is made to the United Companies Financial Corporation
Securities Underwriting Agreement-Basic Provisions dated _____ __, 1997 (the
"Underwriting Agreement"). This Agreement is the Terms Agreement referred to
in the Underwriting Agreement. We offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement, the following securities
("Securities") on the following terms:
<TABLE>
<S> <C>
Title: due
------------ ------------
Principal Amount to be issued: $
-----------
Date of maturity:
------------
Interest rate: %
------------
Interest payment dates: and of each year
------------ --------------
Public offering price: %[, plus accrued interest from ]
------------ ------------
Purchase Price: %[, plus accrued interest from ] (payable
------------ ------------
by [wire transfer in same-day federal funds] [certified or official
bank check in New York Clearinghouse funds])
Underwriting Commission: %
------------
</TABLE>
<PAGE> 35
2
<TABLE>
<S> <C>
Redemption provisions: [Redeemable at the option of the Company in whole or in part on and
after , at 100% of principal amount plus accrued
-------- -- -----
interest to the date of redemption.]
Conversion or
------------
Exchange Provisions:
Trading
------------
Restrictions:
Delayed Delivery Contracts:
------------
Closing date and location: , 10:00 A.M.;
------------
Simpson Thacher & Bartlett, 425 Lexington Avenue
New York, New York 10017
Additional co-managers, if any:
------------
Additional underwriters, if any:
------------
Other terms:
------------
</TABLE>
The Company represents and warrants to each of us that the
representations and warranties of the Company set forth in Section 1 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof. All of the provisions contained in the Underwriting Agreement, a
copy of which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
As contemplated by Section 2 of the Underwriting Agreement,
attached as Schedule A hereto is a completed list of our respective
underwriting commitments, which shall be a part of this Agreement and the
Underwriting Agreement.
This Agreement shall be governed by the laws of the State of
New York without regard to the conflicts of law principles thereof.
If the foregoing is in accordance with your understanding of
the agreement between the Underwriters and you, please sign and return to the
Underwriters a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
<PAGE> 36
3
agreement between the Underwriters and you in accordance with its terms and the
terms of the Underwriting Agreement.
Very truly yours,
[ ]
By: ________________________
Confirmed and accepted as of
the date first above written:
UNITED COMPANIES
FINANCIAL CORPORATION
By: ________________________
Name:
Title:
<PAGE> 37
Exhibit A(II)
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
Equity Securities
TERMS AGREEMENT
_______ __, 199_
To: United Companies Financial Corporation
4041 Essen Lane
Baton Rouge, Louisiana 70809
Dear Sirs:
Reference is made to the United Companies Financial Corporation
Securities Underwriting Agreement-Basic Provisions dated _____ __, 1997 (the
"Underwriting Agreement"). This Agreement is the Terms Agreement referred to
in the Underwriting Agreement. We offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement, the following securities
("Securities") on the following terms:
<TABLE>
<S> <C>
Title: [Common][Preferred] Stock[, Series __] [and Depositary Shares each
representing __ shares of Preferred Stock]
Number of Shares to be issued: shares
-----------
Voting Rights:
------------
Dividends: [cash] dividends of $ to $ per share payable
quarterly in arrears on , , , and
-------- -- -------- -- -------- -- -------- --
Public offering price: $ per share
------------
Purchase Price: $ per share (payable by [wire transfer in same-day
------------
federal funds] [certified or official bank check in New York
Clearinghouse funds])
Underwriting Commission: %
-------------
</TABLE>
<PAGE> 38
2
<TABLE>
<S> <C>
Redemption provisions:
------------
Liquidation Preference: $ per share plus .
------------
Conversion or Exchange
------------
Provisions:
Trading Restrictions:
------------
Over-Allotment Option:
------------
Closing date and location: , 10:00 A.M.;
------------
Simpson Thacher & Bartlett, 425 Lexington Avenue
New York, New York 10017
Additional co-managers, if any:
------------
Additional underwriters, if any:
------------
Other Terms:
------------
Name of Transfer Agent and
------------
Registrar:
</TABLE>
The Company represents and warrants to each of us that the
representations and warranties of the Company set forth in Section 1 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof. All of the provisions contained in the Underwriting Agreement, a
copy of which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
As contemplated by Section 2 of the Underwriting Agreement,
attached as Schedule A hereto is a completed list of our respective
underwriting commitments, which shall be a part of this Agreement and the
Underwriting Agreement.
This Agreement shall be governed by the laws of the State of
New York without regard to the conflicts of law principles thereof.
If the foregoing is in accordance with your understanding of
the agreement between the Underwriters and you,
<PAGE> 39
3
please sign and return to the Underwriters a counterpart hereof, whereupon this
instrument along with all counterparts and together with the Underwriting
Agreement shall be a binding agreement between the Underwriters and you in
accordance with its terms and the terms of the Underwriting Agreement.
Very truly yours,
[ ]
By: ________________________
Confirmed and accepted as of
the date first above written:
UNITED COMPANIES
FINANCIAL CORPORATION
By: ________________________
Name:
Title:
<PAGE> 40
SCHEDULE A
<TABLE>
<CAPTION>
Principal Amount
of Debt Securities
to be Purchased/
Number of Shares of
Underwriter Equity Securities
----------- -------------------
<S> <C>
[ ] . . . . . . . . . . . . . . . . . . .
[ ] . . . . . . . . . . . . . . . . . . .
[ ] . . . . . . . . . . . . . . . . . . .
------------------------
Total . . . . . . . . . . .
-------------------------
</TABLE>
<PAGE> 41
Exhibit B
United Companies Financial Corporation
c/o [Manager's Address]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from United
Companies Financial Corporation (the "Company"), and the Company agrees to sell
to the undersigned, on ____________, 19__ (the "Delivery Date"), $____________
principal amount of the Company's ___% [Notes][Debentures] due ____________,
19__ (the "Securities"), offered by the Company's Prospectus dated
____________, 19__, as supplemented by its Prospectus Supplement dated
____________, 19__, receipt of which is hereby acknowledged, at a purchase
price of ___% of the principal amount thereof, plus accrued interest from
____________, 19__, to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
[certified or official bank check in New York Clearing House] [wire transfer of
federal] funds, at the office of the Underwriters, on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligations of the undersigned to take delivery of and
make payment for Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the Company, on or before
____________, 19__, shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Terms Agreement dated ____________, 19__ between the
Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to you that its investment in the Securities is not, as
of the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied
<PAGE> 42
2
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Company that all necessary corporate action for the due
execution and delivery of this contract and the payment for and purchase of the
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for an aggregate principal amount of Securities in excess of
$____________ and that the acceptance of any delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at its
address set forth below. This
<PAGE> 43
3
will become a binding contract between the Company and the undersigned when
such copy is mailed or delivered.
This Agreement shall be governed by the laws of the State of
New York without regard to the conflicts of law principles thereof.
Yours very truly,
______________________________
(Name of Purchaser)
By____________________________
(Title)
______________________________
______________________________
(Address)
Accepted as of the date
first above written.
United Companies
Financial Corporation
By________________________
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code)
---- ---------------------------
<S> <C>
</TABLE>
<PAGE> 1
EXHIBIT 4.4
================================================================================
UNITED COMPANIES FINANCIAL CORPORATION
To
THE BANK OF NEW YORK,
Trustee
__________
Indenture
Dated as of February 19, 1997
__________
Subordinated Debt Securities
================================================================================
<PAGE> 2
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of February 19, 1997
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08, 6.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01, 7.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a), 7.03(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(d)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04, 12.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(a), 6.01(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02, 7.03(a)(7)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(b)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(a)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02, 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
Section 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.06
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.04. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1.05. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1.06. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.07. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.08. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.09. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.10. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.13. No Security Interest Created . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 1.14. Liability Solely Corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.02. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.03. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.01. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.03. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.04. Temporary Debt Securities; Exchange of
Temporary Global Notes for Definitive
Bearer Securities; Global Notes
Representing Registered Securities . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.05. Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.06. Mutilated, Destroyed, Lost and Stolen
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.07. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 3.08. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 3.09. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 3.10. Currency of Payments in Respect of Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 3.11. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 3.12. Exchange Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 3.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.02. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 5.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities . . . . . . . . . . . . . . 59
Section 5.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 5.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . 61
Section 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 5.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.01. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities . . . . . . . . . . . . . . . . . 67
Section 6.05. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.07. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.08. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 6.09. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 6.10. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 77
Section 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 6.12. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 80
Section 6.13. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 80
Section 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . 89
Section 7.02. Preservation of Information; Communication to Holders . . . . . . . . . . . . . . . . . . . . 89
Section 7.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 7.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 8.01. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holder . . . . . . . . . . . . . . . 95
Section 8.03. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 8.04. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . 96
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 9.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 9.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 9.03. Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 9.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 9.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 9.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 9.07. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 11.01. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . 100
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
Section 11.02. Supplemental Indentures With Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . 102
Section 11.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 11.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 11.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 11.06. Reference in Debt Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . 104
Section 11.07. Notice of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 11.08. Effect on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 12.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 12.02. Officer's Certificate as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 12.03. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 12.04. Money for Debt Securities; Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . 108
Section 12.05. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Section 12.06. Purchase of Debt Securities by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Section 12.07. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Section 13.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Section 13.02. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . 111
Section 13.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Section 13.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Section 13.06. Debt Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 114
Section 13.07. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Section 14.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt Securities . . . . . . . . . . . . 116
Section 14.03. Redemption of Debt Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . 116
ARTICLE FIFTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Section 15.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations . . . . . . . . . . . . . . 119
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust . . . . . . . . . . . . 121
Section 15.04. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
ARTICLE SIXTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Section 16.01 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Section 16.02. Distribution on Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Section 16.03. No Payment on Debt Securities in Event of Default on Senior Indebtedness . . . . . . . . . . 125
Section 16.04. Payments on Debt Securities Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Section 16.05. Authorization of Holders to Trustee to Effect Subordination . . . . . . . . . . . . . . . . 126
Section 16.06. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Section 16.07. Trustee as Holder of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Section 16.08. Modifications of Terms of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 128
Section 16.09. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . 128
Section 16.10. Article Sixteen Not to Prevent Events of Default . . . . . . . . . . . . . . . . . . . . . . 129
Section 16.11. Certain Conversions Not Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
ARTICLE SEVENTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Section 17.01. Applicability; Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Section 17.02 Conversion Procedure; Conversion Price; Fractional Shares . . . . . . . . . . . . . . . . . 130
Section 17.03. Adjustment of Conversion Price for Common Stock . . . . . . . . . . . . . . . . . . . . . . 132
Section 17.04. Consolidation or Merger of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Section 17.05. Notice of Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Section 17.06. Notice in Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Section 17.07. Company To Reserve Stock; Registration; Listing . . . . . . . . . . . . . . . . . . . . . . 138
Section 17.08. Taxes on Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Section 17.09. Conversion After Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Section 17.10. Company Determination Final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Section 17.11. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
</TABLE>
<PAGE> 8
INDENTURE dated as of February 19, 1997, between UNITED
COMPANIES FINANCIAL CORPORATION, a Louisiana corporation (hereinafter called
the "Company"), having its principal executive office at 4041 Essen Lane, Baton
Rouge, Louisiana 70809 and The Bank of New York, a New York banking
corporation, as trustee (hereinafter called the "Trustee"), having its
principal office at 101 Barclay Street, New York, New York 10286.
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
and subordinated debentures, notes, bonds or other evidences of indebtedness
(herein generally called the "Debt Securities"), to be issued in one or more
series, as in this Indenture provided.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
Debt Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Debt Securities or of
Debt Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(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;
<PAGE> 9
2
(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 in the United
States of America 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 Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.01.
"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.
"Affiliated Corporation" means any corporation which is
controlled by the Company but which is not a Subsidiary of the Company
pursuant to the definition of the term "Subsidiary."
"Authenticating Agent" has the meaning specified in Section
6.14.
<PAGE> 10
"Authorized Newspaper" means a newspaper or financial journal
in an official language of the country of publication customarily
published at least once a day, and customarily published for at least
five days in each calendar week, and of general circulation in the
place in connection with which the term is used or in the financial
community of such place. Where successive publications are required
to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business
Day in such city.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 2.01, which is
payable to bearer (including any Global Note payable to bearer) and
title to which passes by delivery only, but does not include any
Coupons.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act
hereunder or any director or directors and/or officer or officers of
the Company to whom that board or committee shall have delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Debt Securities means any day which is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or
obligated by law to close, except as otherwise specified pursuant to
Section 3.01.
"CEDEL" means Cedel S.A.
"Closing Price" means with respect to the shares of Common
Stock on any day, (i) the last reported sales price regular way or, in
case no such reported sale takes place on such day, the average of the
reported closing bid and ask prices regular way, in either case on the
New York Stock Exchange, or (ii) if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, the last
reported sales price regular way, or in case no such reported sale
takes place on such day, the average of the reported closing bid and
asked prices regular way, on the principal national securities exchange
on which the shares of Common Stock are listed or admitted to trading,
or (iii) if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the average of the closing
bid and asked prices as furnished by any New York Stock Exchange member
firm selected from time to time by the Company for that purpose.
<PAGE> 11
4
"Code" means the Internal Revenue Code of 1986, as amended and
as in effect on the date hereof.
"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 on such date.
"Common Depositary" has the meaning specified in Section
3.04(b).
"Common Stock" means the class of Common Stock, par value
$2.00 per share, of the Company authorized at the date of this
Indenture as originally signed or any other class of stock resulting
from successive changes or reclassifications of such Common Stock and
which does not have any priority in the payment of dividends or upon
liquidation over any other class of stock and which is not subject to
redemption by the Company; provided that if Debt Securities
convertible into Common Stock are outstanding at the time of such
successive changes or reclassifications and there shall be more than
one such resulting class of stock, the shares of each resulting class
then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
<PAGE> 12
5
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by any two
of the Chairman, a Vice Chairman, the President, the Chief Financial
Officer, an Executive Vice President, the Treasurer, the Controller or
the Secretary of the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section
3.10(i).
"Conversion Agent" means any Person authorized by the Company
to receive Debt Securities to be converted into Common Stock on behalf
of the Company. The Company initially authorizes the Trustee to act
as Conversion Agent for the Debt Securities on its behalf. The
Company may at any time and from time to time authorize one or more
Persons to act as Conversion Agent in addition to or in place of the
Trustee with respect to any series of Debt Securities issued under
this Indenture.
"Conversion Date" has the meaning specified in Section
3.10(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community, (ii)
the ECU to be used both within the European Monetary System and for
the settlement of transactions by public institutions of or within the
European Communities or (iii) any Currency unit other than the ECU to
be used for the purposes for which it was established.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Stock, the price per
share of Common Stock at which the Debt Securities of such series are
so convertible, as specified pursuant to Section 3.01 with respect to
such series, as such price may be adjusted from time to time in
accordance with Section 17.03.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at 101 Barclay Street, New
York, New York 10286.
<PAGE> 13
6
"Corporation" includes corporations, associations, companies
(including joint stock companies and limited liability companies) and
business trusts.
"Coupon" means any interest coupon appertaining to any Debt
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency or Currency unit.
"Currency Determination Agent" means the New York Clearing
House bank, if any, from time to time selected by the Company pursuant
to Section 3.01; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be
acceptable to the Company and shall, in the opinion of the Company and
the Trustee at the time of such appointment, require such agent to
make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making
of such decision or determination.
"Current Market Price" on any date means the average of the
daily Closing Prices per share of Common Stock for any thirty (30)
consecutive Trading Days selected by the Company prior to the date in
question, which thirty (30) consecutive Trading Day period shall not
commence more than forty-five (45) Trading Days prior to the day in
question; provided that with respect to Section 17.03(3), the "Current
Market Price" of the Common Stock shall mean the average of the daily
Closing Prices per share of Common Stock for the five (5) consecutive
Trading Days ending on the date of the distribution referred to in
Section 17.03(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Currency unit" means a composite currency or currency unit
the value of which is determined by reference to the value of the
currencies of any group of countries.
<PAGE> 14
7
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a)
of the Code and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment
is legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency unit" has the meaning
specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of
New York, Brussels office, or its successor as operator of the
Euro-clear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.
<PAGE> 15
8
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Date" has the meaning specified in Section 3.04(b).
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar, Foreign Currency or Currency unit amounts of
principal, premium, if any, and any interest respectively (on an
aggregate basis and on the basis of a Debt Security having the lowest
denomination principal amount determined in accordance with Section
3.02 in the relevant Currency or Currency unit), payable on the basis
of such Market Exchange Rate sent (in the case of a telex) or signed
(in the case of a certificate) by the Treasurer or any Assistant
Treasurer of the Company.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically
by reference to an interest rate index or any other index specified
pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the government
of any country other than the United States.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without
limitation, any temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon,
the bearer thereof.
"Indebtedness" means (1) any liability of any Person (a) for
borrowed money, or (b) evidenced by a bond, note, debenture or similar
instrument (including purchase money obligations but excluding Trade
Payables), or (c) for the payment of money relating to a lease that is
required to be
<PAGE> 16
9
classified as a capitalized lease obligation in accordance with
generally accepted accounting principles, or (d) preferred or
preference stock of a Subsidiary of the Company held by Persons other
than the Company or a Subsidiary of the Company; (2) any liability of
others described in the preceding clause (1) that the Person has
guaranteed, that is recourse to such Person or that is otherwise its
legal liability; and (3) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (1) and (2) above.
"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, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities as
established pursuant to Section 3.01.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a
Bearer Security, includes any additional amounts payable on such
Bearer Security, if so provided pursuant to Section 3.01.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt
Security.
"Market Exchange Rate" means (i) for any conversion involving
a Currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant Currency unit and
Dollars or such Foreign Currency calculated for noon, New York time,
on the Valuation Date by the method specified pursuant to Section 3.01
for the securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon (New York City time)
buying rate for such Foreign Currency for cable transfers quoted in
New York City as certified for customs purposes by the Federal Reserve
Bank of New York and (iii) for any conversion of one Foreign Currency
into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into
<PAGE> 17
10
which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for
Dollars or such purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Company, shall use, in its
sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent available
date, or quotations from one or more major banks in New York City,
London or other principal market for such Currency or Currency unit in
question, or such other quotations as the Company shall deem
appropriate, in its sole discretion and without liability on its part.
Unless otherwise specified by the Currency Determination Agent, if
any, or if there shall not be a Currency Determination Agent, then by
the Trustee, if there is more than one market for dealing in any
Currency or Currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency or
Currency unit shall be that, as determined by the Currency
Determination Agent, or if there shall not be a Currency Determination
Agent, then by the Trustee, in its sole discretion and without
liability on its part, upon which a nonresident issuer of securities
designated in such Currency or Currency unit would purchase such
Currency or Currency unit in order to make payments in respect of such
securities.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt 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, repayment at the option of the
Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by any two
of the Chairman, a Vice Chairman, the President, the Chief Financial
Officer, an Executive Vice President, the Treasurer, the Controller or
the Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company)
and who shall be reasonably satisfactory to the Trustee, which is
delivered to the Trustee.
<PAGE> 18
11
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Debt Securities and any
Coupons thereto pertaining; provided, however, that if such Debt
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
(iii) Debt Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof reasonably
satisfactory to it that such Debt Securities are held by a bona fide
purchaser in whose hands such Debt Securities are valid obligations of
the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Debt Securities Outstanding have
performed any Act hereunder, Debt Securities owned by the Company or
any other obligor upon the Debt 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 Act, only Debt Securities
which the Trustee knows to be so owned shall be so disregarded. Debt
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 to act with respect to such Debt
Securities
<PAGE> 19
12
and that the pledgee is not the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed any Act
hereunder, the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purpose shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 and the principal amount of a Debt
Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant
to Section 3.10(k).
"Overdue Rate," when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may
be, relating to such series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"permanent Global Note" shall have the meaning given such term
in Section 3.04(b).
"Person" means any individual, corporation, partnership, joint
venture, association, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal
of (and premium, if any) and interest on the Debt Securities of that
series are payable as specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.06 in lieu of a mutilated, lost, destroyed
<PAGE> 20
13
or stolen Debt Security or a Debt Security to which a mutilated, lost,
destroyed or stolen Coupon appertains shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Debt Security or
the Debt Security to which the mutilated, lost, destroyed or stolen
Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any
Debt Security pursuant to this Indenture which, in the case of a
Floating Rate Security, unless otherwise specified pursuant to Section
3.01, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as
of the Redemption Date upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02 or any other redemption
specified pursuant to Section 3.01, and in the case of any other Debt
Security, the principal amount thereof, plus, in each case, premium,
if any, and accrued and unpaid interest, if any, to the Redemption
Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.01 which is registered as to
principal and interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means
the date specified for the purpose pursuant to Section 3.01 for such
Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any vice president, the secretary, any assistant secretary or
any assistant vice president in its corporate trust department or
similar group administering the trusts hereunder and also means, with
respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
<PAGE> 21
14
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05(a).
"Senior Indebtedness" means the principal of (and premium, if
any) and unpaid interest on (i) Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, for money borrowed (other than the
Indebtedness evidenced by the Debt Securities of any series), unless
in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such Indebtedness is not
senior or prior in right of payment to the Debt securities or is
paripassu or subordinate by its terms in right of payment to the Debt
Securities, and (ii) renewals, extensions and modifications of any
such Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section
3.10(i).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security or the Coupon,
if any, representing such installment of interest, as the date on
which the principal of such Debt Security or such installment of
principal, premium or interest is due and payable.
"Subsidiary" means any Corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the directors of such Corporation,
irrespective of whether or not, at the time, stock of any other class
or classes of such Corporation shall have or might have voting power
by reason of the happening of any contingency, is at the time,
directly or indirectly, owned or controlled by the Company or by one
or more Subsidiaries thereof, or by the Company and one or more
Subsidiaries thereof.
"temporary Global Note" shall have the meaning given such term
in Section 3.04(b).
<PAGE> 22
15
"Trade Payables" means accounts payable or any other
indebtedness or monetary obligations to trade creditors created or
assumed in the ordinary course of business in connection with the
obtaining of materials or services.
"Trading Day" means, with respect to the Common Stock, a day
on which NYSE is open for the transaction of business.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in force at the date as of which this instrument was
executed, except as provided in Section 11.05.
"United States" means the United States of America (including
the States and the District of Columbia), and its possessions, which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to
Section 3.01 until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is
then a U.S. Depositary hereunder, and if at any time there is more
than one such Person, "U.S. Depositary" as used with respect to the
Debt Securities of any series shall mean the U.S. Depositary with
respect to the Debt Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 15.02.
<PAGE> 23
16
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or
organized in or under the laws of the United States, or an estate or
trust the income of which is subject to United States Federal income
taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case
may be, whether or not designated by a number or word or words added
before or after the title "Vice President."
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding voting stock (other than directors' qualifying shares)
is at the time, directly or indirectly, owned by the Company, or by
one or more Wholly-Owned Subsidiaries of the Company or by the Company
and one or more Wholly-Owned Subsidiaries of the Company.
Section 1.02. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.02) shall include:
<PAGE> 24
17
(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 1.03. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or 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 representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company,
<PAGE> 25
18
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Notices, etc., to Trustee and Company
Any 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 (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention: Daniel
Golden, 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 or airmail postage prepaid if sent from outside the United
States, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, to the
attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Section 1.05. Notice to Holders; Waiver
When this Indenture provides for notice to Holders of any
event, (1) such notice shall be sufficiently given to Registered Holders
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to such
<PAGE> 26
19
Registered Holders as their names and addresses appear in the Security
Register, within the time prescribed, and (2) such notice shall be sufficiently
given to Holders of Bearer Securities or Coupons (unless otherwise herein
expressly provided) if published at least twice in an Authorized Newspaper or
Newspapers in The City of New York and, if Debt Securities of such series are
then listed on the London Stock Exchange or the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
shall so require, in a daily newspaper or financial journal in London or
Luxembourg or in such other city or cities specified pursuant to Section 3.01
or in any Debt Security on Business Days, the first such publication to be
not earlier than the earliest date and not later than two Business Days prior
to the latest date prescribed for the giving of such notice; provided, however,
that, in any case, any notice to Holders of Floating Rate Securities regarding
the determination of a periodic rate of interest, if such notice is required
pursuant to Section 3.01, shall be sufficiently given if given in the manner
specified pursuant to Section 3.01.
In the event of suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice by mail,
such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized
Newspapers or by reason of any other cause it shall be impracticable to give
notice by publication, such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose hereunder.
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 on such waiver. In any case where notice to Holders is given
by mail, neither the failure to mail such notice nor any defect in any notice
so mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
<PAGE> 27
20
In any case where notice to Holders is given by publication, any defect in any
notice so published as to any particular Holder shall not affect the
sufficiency of such notice with respect to other Holders, and any notice which
is published in the manner herein provided shall be conclusively presumed to
have been duly given.
Section 1.06. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with
the duties imposed on any person by the provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such duties imposed by the Trust
Indenture Act shall control.
Section 1.07. Effect of Headings and Table of Contents
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns
All covenants and agreements in this Indenture by the parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause
In case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 1.10. Benefits of Indenture
Nothing in this Indenture or in the Debt Securities, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder, and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
<PAGE> 28
21
Section 1.11. Governing Law
This Indenture, the Debt Securities and the Coupons shall be
deemed to be contracts made and to be performed entirely in the State of New
York, and for all purposes shall be governed by and construed in accordance
with the laws of said State without regard to the conflicts of law rules of
said State.
Section 1.12. Legal Holidays
Unless otherwise specified pursuant to Section 3.01 or in any
Debt Security, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Debt Security of any series or the last date on which a
Holder has the right to convert Debt Securities of such series that are
convertible shall not be a Business Day at any Place of Payment for the Debt
Securities of that series, then (notwithstanding any other provision of this
Indenture or of the Debt Securities or Coupons) payment of principal (and
premium, if any) or interest need not be made at such Place of Payment on such
date and such Debt Securities need not be converted on such date, but any such
payment may be made at such Place of Payment and such Debt Securities may be
converted, on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, Redemption Date or at the Stated
Maturity or on such last day for conversion, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such Business Day if
such payment is made or duly provided for on such Business Day.
Section 1.13. No Security Interest Created
Nothing in this Indenture or in the Debt Securities or
Coupons, express or implied, shall be construed to constitute a security
interest or mortgage or other pledge of collateral under the Uniform Commercial
Code or similar legislation or real property laws, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
<PAGE> 29
22
Section 1.14. Liability Solely Corporate
No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on any Debt Securities or Coupons, or any
part thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator,
or against any stockholder, officer or director, as such, past, present or
future, of the Company (or any incorporator, stockholder, officer or director
of any predecessor or successor corporation), either directly or through the
Company (or any such predecessor or successor corporation), whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Debt Securities and Coupons are solely
corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any such incorporator, stockholder, officer or director,
past, present or future, of the Company (or any incorporator, stockholder,
officer or director of any such predecessor or successor corporation), either
directly or indirectly through the Company or any such predecessor or successor
corporation, because of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants, promises or agreements contained
in this Indenture or in any of the Debt Securities or Coupons or to be implied
herefrom or therefrom; and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for,
the execution of this Indenture and the issue of Debt Securities; provided,
however, that nothing herein or in the Debt Securities or Coupons contained
shall be taken to prevent recourse to and the enforcement of the liability, if
any, of any stockholder or subscriber to capital stock upon or in respect of
the shares of capital stock not fully paid.
<PAGE> 30
23
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally
The Debt Securities and the Coupons, if any, of each series
shall be substantially in one of the forms (including global form) established
in or pursuant to a Board Resolution or one or more indentures supplemental
hereto, and shall have 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 or designation and
such legends or endorsements placed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.01,
Debt Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each
series shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such Debt
Securities and Coupons, as conclusively evidenced by their execution of such
Debt Securities and Coupons.
Section 2.02. Form of Trustee's Certificate of Authentication
The form of the Trustee's certificate of authentication to be
borne by the Debt Securities shall be substantially as follows:
<PAGE> 31
24
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the
within mentioned Indenture.
The Bank of New York,
as Trustee
Dated: By
-----------------------------------
Authorized Signatory
Section 2.03. Securities in Global Form
If any Debt Security of a series is issuable in global form,
the Global Note so issued may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and
may also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note.
Any instructions by the Company with respect to a Global Note, after its
initial issuance, shall be in writing but need not comply with Section 1.02.
Global Notes may be issued in either registered or bearer form
and in either temporary or permanent form. Permanent Global Notes will be
issued in definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
<PAGE> 32
25
The Debt Securities may be issued from time to time in one or
more series. There shall be established in or pursuant to a Board Resolution
and (subject to Section 3.03) set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other
series of Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon transfer of, or in exchange for, or
in lieu of, other Debt Securities of such series pursuant to Sections
3.04, 3.05, 3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the Maturity thereof or the method by
which such portion shall be determined;
(4) the date or dates on which or periods during which the
Debt Securities of the series may be issued, and the date or dates (or
the method of determination thereof) on which the principal of (and
premium, if any, on) the Debt Securities of such series are or may be
payable (which, if so provided in such Board Resolution or
supplemental indenture, may be determined by the Company from time to
time and set forth in the Debt Securities of the series issued from
time to time);
(5) the rate or rates (or the method of determination
thereof) at which the Debt Securities of the series shall bear
interest, if any, and the dates from which such interest shall accrue
(which, in either case or both, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company
from time to time and set
<PAGE> 33
26
forth in the Debt Securities of the series issued from time to time);
and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), and, in the case of
Registered Securities, the Regular Record Dates for the interest
payable on such Interest Payment Dates and, in the case of Floating
Rate Securities, the notice, if any, to Holders regarding the
determination of interest and the manner of giving such notice;
(6) the place or places where the principal of (and premium,
if any) and interest on Debt Securities of the series shall be
payable; the extent to which, or the manner in which, any interest
payable on any Global Note on an Interest Payment Date will be paid,
if other than in the manner provided in Section 3.07; the extent, if
any, to which the provisions of the last sentence of Section 12.01
shall apply to the Debt Securities of the series; and the manner in
which any principal of, or premium, if any, on, any Global Note will
be paid, if other than as set forth elsewhere herein;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Debt Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
the Holder and the period or periods within which or the dates on
which, the prices at which and the terms and conditions upon which
Debt Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem Debt
Securities, in whole or in part, at its option and the period or
periods within which, or the date or dates on which, the price or
prices at which, and the terms and conditions upon which Debt
Securities of the series may be redeemed, if any, in whole or in part,
at the option of the Company or otherwise;
(9) if the coin or Currency in which the Debt Securities
shall be issuable is in Dollars, the denominations of such Debt
Securities if other than denominations of $1,000 and any integral
multiple thereof (except as provided in Section 3.04);
<PAGE> 34
27
(10) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which
such Debt Securities may be issued and, if other than the principal
amount thereof, the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.02;
(11) provisions, if any, for the defeasance of the Debt
Securities of such series pursuant to the legal defeasance option (as
defined in Section 15.02), or certain of the Company's obligations
with respect thereto pursuant to the covenant defeasance option (as
defined in Section 15.02);
(12) whether Debt Securities of the series are to be issued
as Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto,
whether Bearer Securities of the series may be exchanged for
Registered Securities of the series, as provided in Section 3.05(b) or
otherwise and the circumstances under which and the place or places at
which any such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or
tax redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure set forth
in Section 3.04(b) shall apply, the forms of certifications to be
delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or
Currencies or Currency unit in which Debt Securities of the series
shall be denominated or in which payment of the principal of (and/or
premium, if any) and/or interest on the Debt Securities of the series
may be made, and the particular provisions applicable thereto and, if
applicable, the amount of Debt Securities of the series which entitles
the Holder of a Debt Security of the series or its proxy to one vote
for purposes of Section 9.06;
<PAGE> 35
28
(15) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a Currency other than that in
which the Debt Securities are denominated or payable without such
election, in addition to or in lieu of the provisions of Section 3.10,
the period or periods within which and the terms and conditions upon
which, such election may be made and the time and the manner of
determining the exchange rate or rates between the Currency or
Currencies in which the Debt Securities are denominated or payable
without such election and the Currency or Currencies in which the Debt
Securities are to be paid if such election is made;
(16) the date as of which any Debt Securities of the series
shall be dated, if other than as set forth in Section 3.03;
(17) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index, including, but not limited to,
an index based on a Currency or Currencies other than that in which
the Debt Securities are denominated or payable, or any other type of
index, the manner in which such amounts shall be determined;
(18) if the Debt Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning the payment
of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(19) the designation of the original Currency Determination
Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of, any
Events of Default or covenants provided for with respect to Debt
Securities of the series;
(23) if Bearer Securities of the series are to be issued, (x)
whether interest in respect of any portion of a temporary Debt
Security in global form (representing all of
<PAGE> 36
29
the Outstanding Bearer Securities of the series) payable in respect of
any Interest Payment Date prior to the exchange of such temporary Debt
Security for definitive Debt Securities of the series shall be paid to
any clearing organization with respect to the portion of such
temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon
which any such interest payment received by a clearing organization
will be credited to the Persons entitled to interest payable on such
Interest Payment Date, (y) the terms upon which interests in such
temporary Debt Security in global form may be exchanged for interests
in a permanent Global Note or for definitive Debt Securities of the
series and the terms upon which interests in a permanent Global Note,
if any, may be exchanged for definitive Debt Securities of the series
and (z) the cities in which the Authorized Newspapers designated for
the purposes of giving notices to Holders are published;
(24) whether the Debt Securities of the series shall be
issued in whole or in part in the form of one or more Global Notes
and, in such case, the U.S. Depositary or any Common Depositary for
such Global Note or Notes; and if the Debt Securities of the series
are issuable only as Registered Securities, the manner in which and
the circumstances under which Global Notes representing Debt
Securities of the series may be exchanged for Registered Securities in
definitive form, if other than, or in addition to, the manner and
circumstances specified in Section 3.04(c);
(25) whether the Debt Securities of the series will be
convertible into shares of Common Stock, and if so, the terms and
conditions, which may be in addition to or in lieu of the provisions
of Article Seventeen, upon which such Debt Securities will be so
convertible, including the Conversion Price and the conversion period;
(26) the designation, if any, of the U.S. Depositary; and the
designation of any trustees (other than the Trustee), depositaries,
Authenticating Agents, Paying Agents, Security Registrars, or any
other agents with respect to the Debt Securities of such series;
<PAGE> 37
30
(27) if the Debt Securities of such series are to be issuable
in definitive form (whether upon original issuance or upon exchange of
a temporary Debt Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions; and
(28) any other terms of the series (which other terms shall
not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and Coupons, if any,
shall be substantially identical to all other debt securities of such series
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series
if so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 3.03) set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.02. Denominations
In the absence of any specification pursuant to Section 3.01
with respect to the Debt Securities of any series, the Debt Securities of such
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in Dollars.
<PAGE> 38
31
Section 3.03. Execution, Authentication, Delivery and Dating
The Debt Securities and the Coupons, if any, of any series
shall be executed on behalf of the Company by its Chairman, a Vice Chairman,
its President, one of its Executive Vice Presidents or its Treasurer, under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may be manual or
facsimile.
Debt Securities and Coupons 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 Debt Securities and Coupons or did not hold such offices at the date of
such Debt Securities and Coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities, with
appropriate Coupons, if any, of any series, executed by the Company, to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debt Securities and Coupons and the Trustee
in accordance with the Company Order shall authenticate and make available for
delivery such Debt Securities and Coupons; provided, however, that, in
connection with its sale during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security (other than a temporary
Global Note in bearer form) may be delivered outside the United States in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished to the Euro-clear Operator or to
CEDEL a certificate substantially in the form set forth in Exhibit A to this
Indenture and if the Euro-clear Operator or CEDEL has furnished the Trustee a
certificate substantially in the form set forth in Exhibit B. If all the Debt
Securities of any one series are not to be issued at one time and if a Board
Resolution or supplemental indenture relating to such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Debt Securities and other matters which are subject to
variation, such as interest rate, Stated Maturity, date of issuance and date
from which interest, if any, shall accrue. If any Debt Security shall be
represented
<PAGE> 39
32
by a permanent Global Note, then, for purposes of this Section and Section
3.04, the notation by the Common Depositary of a beneficial owner's interest
therein upon original issuance of such Debt Security or upon exchange of a
portion of a temporary Global Note shall be deemed to be delivery in connection
with the original issuance of such beneficial owner's interest in such
permanent Global Note. Except as permitted by Section 3.06 or 3.07, the
Trustee shall not authenticate and make available for delivery any Bearer
Security unless all Coupons for interest then matured have been detached and
cancelled.
The Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, prior to the
authentication and delivery of the Debt Securities and Coupons of such series,
(i) the supplemental indenture or the Board Resolution by or pursuant to which
the form and terms of such Debt Securities and Coupons have been approved, (ii)
the certificates and opinions required pursuant to Section 1.02 and (iii) one
or more Opinions of Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the Trustee
in connection with the authentication and delivery of such Debt
Securities and Coupons conform to the requirements of this Indenture
and constitute sufficient authority hereunder for the Trustee to
authenticate and make available for delivery such Debt Securities and
Coupons;
(2) the forms and terms of such Debt Securities and Coupons
have been established in conformity with the provisions of this
Indenture;
(3) in the event that the forms or terms of such Debt
Securities and Coupons have been established in a supplemental
indenture, the execution and delivery of such supplemental indenture
has been duly authorized by all necessary corporate action of the
Company, such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, is a valid and binding obligation
enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
<PAGE> 40
33
(4) the execution and delivery of such Debt Securities and
Coupons have been duly authorized by all necessary corporate action of
the Company and such Debt Securities and Coupons have been duly
executed by the Company and, assuming due authentication by the
Trustee and delivery by the Company, are valid and binding obligations
enforceable against the Company in accordance with their terms,
entitled to the benefit of the Indenture, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and subject to such other exceptions as counsel
shall reasonably request and as to which the Trustee shall not
reasonably object; and
(5) to the best of such counsel's knowledge, all governmental
consents, authorizations and approvals which are required for the
execution and delivery of the Indenture and the Debt Securities under
all applicable Louisiana laws, if any, have been received other than
such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Debt
Securities.
For purposes of this opinion, such counsel may rely as to
factual matters upon certificates or written statements from officers or other
appropriate representatives of the Company or upon certificates of public
officials and such opinion may contain assumptions, limitations, exceptions and
restrictions which are reasonably satisfactory to the Trustee and its counsel.
The Trustee shall not be required to authenticate such Debt
Securities and Coupons if the issuance of such Debt Securities and Coupons
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture in a manner which is
not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or permanent or
other definitive Bearer Security in global form) shall be dated as of the date
of original issuance of the first
<PAGE> 41
34
Debt Security of such series to be issued, except as otherwise provided
pursuant to Section 3.01 with respect to the Bearer Securities of any series.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debt Security a certificate of authentication substantially in one of the
forms provided for herein duly executed by the Trustee or by an Authenticating
Agent, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Debt Security shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Debt Security to the Trustee for
cancellation as provided in Section 3.08 together with a written statement
(which need not comply with Section 1.02) stating that such Debt Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.04. Temporary Debt Securities; Exchange of
Temporary Global Notes for Definitive Bearer Securities; Global Notes
Representing Registered Securities
(a) Pending the preparation of definitive Registered
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary
Registered Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination for
Registered Securities of such series, substantially of the tenor of the
definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as conclusively
evidenced by their execution of such Registered Securities. Every such
temporary Registered Security shall be executed by the Company and shall be
authenticated and made available for delivery by the Trustee upon
<PAGE> 42
35
the same conditions and in substantially the same manner, and with the same
effect, as the definitive Registered Securities in lieu of which they are
issued. In the case of any series issuable as Bearer Securities, such
temporary Debt Securities may be in global form, representing such of the
Outstanding Debt Securities of such series as shall be specified therein.
Except in the case of temporary Debt Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the temporary Debt Securities of such series shall be exchangeable
for definitive Debt Securities of such series, of a like Stated Maturity and
with like terms and provisions, upon surrender of the temporary Debt Securities
of such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05
in connection with a transfer. Upon surrender for cancellation of any one or
more temporary Debt Securities of any series (accompanied by any unmatured
Coupons), the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and
of a like Stated Maturity and like terms and provisions; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that a definitive Bearer
Security (including a permanent Bearer Security in global form) shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in Section 3.03. Until so exchanged, the temporary
Registered Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Registered Securities of such
series.
(b) Unless otherwise specified pursuant to Section 3.01, all
Bearer Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the
<PAGE> 43
36
same effect, as definitive Bearer Securities, and the temporary or permanent
Global Note, as the case may be, shall, unless otherwise specified therein, be
delivered by the Trustee to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of the Euro-clear
Operator or CEDEL, as the case may be, for credit to the account of the Company
(in the case of sales of Bearer Securities by the Company directly to
investors) or the managing underwriter (in the case of sales of Bearer
Securities by the Company to underwriters) or such other accounts as the
Company or the managing underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to
the terms of any temporary Global Note which (subject to any applicable laws
and regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
Coupons. On or after the Exchange Date such temporary Global Note shall be
surrendered by the Common Depositary to the Trustee (or such other agent as is
specified for the purpose pursuant to Section 3.01), as the Company's agent for
such purpose, at such place specified outside the United States pursuant to
Section 3.01 and following such surrender, the Trustee (or such other agent)
shall (1) endorse the temporary Global Note to reflect the reduction of its
principal amount by an equal aggregate principal amount of such Debt Security,
(2) endorse the applicable permanent Global Note, if any, to reflect the
initial amount, or an increase in the amount of Debt Securities represented
thereby, (3) manually authenticate such definitive Debt Securities (including
any permanent Global Note), (4) make available for delivery such definitive
Debt Securities to the Holder thereof or, if such definitive Debt Security is a
permanent Global Note, make available for delivery such permanent Global Note
to the Common Depositary to be held outside the United States for the accounts
of the Euro-clear Operator or CEDEL, as the case may be, for credit to the
respective accounts at Euro-clear Operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities (or
to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been cancelled in accordance with Section 3.08 hereof; provided, however,
that, unless
<PAGE> 44
37
otherwise specified in such temporary Global Note, upon such presentation by
the Common Depositary, such temporary Global Note shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by the
Euro-clear Operator, as to the portion of such temporary Global Note held for
its account then to be exchanged for definitive Debt Securities (including any
permanent Global Note), and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), each substantially in the form set forth
in Exhibit B to this Indenture. Each certificate substantially in the form of
Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may be, shall
be based on certificates of the account holders listed in the records of the
Euro-clear Operator or CEDEL, as the case may be, as being entitled to all or
any portion of the applicable temporary Global Note. An account holder of the
Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an interest in
definitive Debt Securities (including any permanent Global Note) shall instruct
the Euro-clear Operator or CEDEL, as the case may be, to request such exchange
on its behalf and shall deliver to the Euro-clear Operator or CEDEL, as the
case may be, a certificate substantially in the form of Exhibit A hereto and
dated no earlier than 10 days prior to the Exchange Date. Until so exchanged,
temporary Global Notes shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities (including any permanent
Global Note) of the same series authenticated and delivered hereunder, except
as to payment of interest, if any.
The delivery to the Company, its agent or the Trustee by the
Euro-clear Operator or CEDEL of any certificate substantially in the form of
Exhibit B hereto may be relied upon by the Company, its agent and the Trustee
as conclusive evidence that a corresponding certificate or certificates has or
have been delivered to the Euro-clear Operator or CEDEL, as the case may be,
pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to
the Trustee (or such other agent as may be specified as the Company's agent for
such purpose pursuant to Section 3.01) definitive Debt Securities in an
aggregate principal amount equal to the principal amount of such temporary
Global Note, executed
<PAGE> 45
38
by the Company. At any time, on or after the Exchange Date, upon 30 days'
notice to the Trustee (and such other agents as may be specified for such
purpose pursuant to Section 3.01) by the Euro-clear Operator or CEDEL, as the
case may be, acting at the request of or on behalf of the beneficial owner, a
Debt Security represented by a temporary Global Note or a permanent Global
Note, as the case may be, may be exchanged, in whole or from time to time in
part, for definitive Debt Securities without charge and the Trustee (or such
agent) shall authenticate and make available for delivery, in exchange for each
portion of such temporary Global Note or such permanent Global Note, an equal
aggregate principal amount of definitive Debt Securities of the same series of
authorized denominations and of a like Stated Maturity and with like terms and
conditions, as the portion of such temporary Global Note or such permanent
Global Note to be exchanged, which, unless the Debt Securities of the series
are not issuable both as Bearer Securities and as Registered Securities, as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that definitive Bearer Securities
shall be delivered in exchange for a portion of the temporary Global Note or
the permanent Global Note only in compliance with the requirements of the
second preceding paragraph. On or prior to the forty-fifth day following
receipt by the Trustee (and such agent as may be specified as the Company's
agent for such purpose pursuant to Section 3.01) of such notice with respect to
a Debt Security, or, if such day is not a Business Day, the next succeeding
Business Day, the temporary Global Note or the permanent Global Note, as the
case may be, shall be surrendered by the Common Depositary to the Trustee (or
such other agent as may be specified as the Company's agent for such purpose
pursuant to Section 3.01), as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debt
Securities without charge following such surrender, upon the request of the
Euro-clear Operator or CEDEL, as the case may be, and the Trustee (or such
agent) shall (1) endorse the applicable temporary Global Note or the permanent
Global Note to reflect the reduction of its principal amount by the aggregate
principal amount of such Debt Security, (2) cause the terms of such Debt
Security and Coupons, if any, to be entered on a definitive Debt Security, (3)
manually authenticate such definitive Debt Security, and (4) if a Bearer
Security is to be delivered, make available for delivery such definitive Debt
Security outside the United States to the Euro-clear Operator or CEDEL, as the
case
<PAGE> 46
39
may be, for or on behalf of the beneficial owner thereof, in exchange for a
portion of such temporary Global Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or
the permanent Global Note, any such exchange shall be made free of charge to
the beneficial owners of such temporary Global Note or the permanent Global
Note, except that a Person receiving definitive Debt Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Debt Securities in person at
the offices of the Euro-clear Operator or CEDEL. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary Global
Note or the permanent Global Note shall be delivered only outside the United
States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the
Exchange Date, a permanent Global Note or definitive Bearer Securities, as the
case may be, will not be issuable in respect of such temporary Global Note or
such portion thereof, and payment thereon will instead be made as provided in
such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary
Global Note or the permanent Global Note shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities of the
same series and tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 3.01, interest payable on
such temporary Global Note on an Interest Payment Date for Debt Securities of
such series occurring prior to the applicable Exchange Date shall be payable to
the Euro-clear Operator or CEDEL on such Interest Payment Date upon delivery by
the Euro-clear Operator or CEDEL to the Trustee of a certificate or
certificates substantially in the form set forth in Exhibit B to this
Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary Global Note on such Interest Payment Date and who have
each delivered to the Euro-clear Operator or CEDEL, as the case may be, a
certificate substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and made
available for delivery by the Trustee in exchange for a portion of a temporary
Global Note or the permanent Global Note shall not bear a coupon for any
interest which shall theretofore have been duly paid by the Trustee to the
Euro-clear Operator or CEDEL, or by the Company to the Trustee in accordance
with the provisions of this Section 3.04.
<PAGE> 47
40
With respect to Exhibits A and B to this Indenture, the
Company may, in its discretion and if required or desirable under applicable
law, substitute one or more other forms of such Exhibits for such Exhibits,
eliminate the requirement that any or all certificates be provided, or change
the time that any certificate may be required, provided that such substitute
form or forms or notice of elimination or change of such certification
requirement have theretofore been delivered to the Trustee (and any agent of
the Company appointed pursuant to Section 3.01 and referred to above) with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee (and any such agent).
(c) If the Company shall establish pursuant to Section 3.01
that the Registered Securities of a series are to be issued in whole or in part
in the form of one or more Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 3.03 and the Company Order with
respect to such series, authenticate and make available for delivery one or
more Global Notes in temporary or permanent form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Debt Securities of such series to be represented by one or more
Global Notes, (ii) shall be registered in the name of the U.S. Depositary for
such Global Note or Notes or the nominee of such depositary, and (iii) shall
bear a legend substantially to the following effect: "This Debt Security may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary, unless and
until this Debt Security is exchanged in whole or in part for Debt Securities
in definitive form."
Notwithstanding any other provision of this Section or Section
3.05, unless and until it is exchanged in whole or in part for Registered
Securities in definitive form, a Global Note representing all or a portion of
the Registered Securities of a series may not be transferred except as a whole
by the U.S.
<PAGE> 48
41
Depositary for such series to a nominee of such depositary or by a nominee of
such depositary to such depositary or another nominee of such depositary or by
such depositary or any such nominee to a successor U.S. Depositary for such
series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of
a series notifies the Company that it is unwilling or unable to continue as
U.S. Depositary for the Debt Securities of such series or if at any time the
U.S. Depositary for Debt Securities of a series shall no longer be a clearing
agency registered and in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor U.S. Depositary with respect to the Debt Securities of such
series. If a successor U.S. Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and make available
for delivery, Registered Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and make available for delivery,
Registered Securities of such series in definitive form and in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
If the Registered Securities of any series shall have been
issued in the form of one or more Global Notes and if an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing, the Company will promptly execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and make available
<PAGE> 49
42
for delivery, Registered Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such series in exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with
respect to Registered Securities of a series, the U.S. Depositary for such
series of Registered Securities may surrender a Global Note for such series of
Debt Securities in exchange in whole or in part for Registered Securities of
such series in definitive form on such terms as are acceptable to the Company
and such depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and make available for delivery, without charge:
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any
authorized denomination as requested by such Person in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Note and the aggregate principal
amount of Registered Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities
in definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the registers maintained in such office and
in any other office or agency of
<PAGE> 50
43
the Company in a Place of Payment being herein sometimes collectively referred
to as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Registered Securities and of transfers and exchanges of Registered Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Registered Securities and registering transfers and exchanges of
Registered Securities as herein provided; provided, however, that the Company
may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee, one or
more new Registered Securities of the same series of like aggregate principal
amount of such denominations as are authorized for Registered Securities of
such series and of a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section
3.05, at the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Registered Securities which the Holder making
the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.01,
the provisions of this Section 3.05(b) shall be applicable to Debt Securities
of any series which are Bearer Securities. At the option of the Holder
thereof, to the extent permitted by law, any Bearer Security of any series
which by its terms is registrable as to principal and interest may be exchanged
for a Registered Security of such series of like aggregate principal amount and
of a like Stated Maturity and with like terms and conditions upon surrender of
such Bearer Security at the Corporate Trust Office or at any other office or
agency of the Company designated pursuant to Section 3.01 for the purpose of
making any such exchanges. Any Coupon Security surrendered for
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44
exchange shall be surrendered with all unmatured Coupons and any matured
Coupons in default attached thereto. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured Coupon or
Coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to any Paying Agent any such missing Coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that except
as otherwise provided in Section 12.03, interest represented by Coupons shall
be payable only upon presentation and surrender of those Coupons at an office
or agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series and of a like
Stated Maturity and with like terms and conditions after the close of business
at such office or agency on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture. The Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Registered Security or
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer
Securities for Registered Securities will be subject to the provisions of
United States income tax laws and regulations applicable to Debt Securities in
effect at the time of such exchange.
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45
(c) Except as otherwise specified pursuant to Section 3.01,
in no event may Registered Securities, including Registered Securities received
in exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange
of Debt Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of
Debt Securities except as provided in Section 3.04(b) or 3.06. 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, transfer or
exchange of Debt Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or without
charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of
redemption of Debt Securities of such series selected for redemption under
Section 13.03 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part.
<PAGE> 53
46
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt
Securities
If (i) any mutilated Debt Security or any mutilated Coupon
with the Coupon Security to which it appertains (and all unmatured Coupons
attached thereto) is surrendered to the Trustee, or (ii) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Debt Security or any Coupon, and there is delivered to the Company
and the Trustee such security or indemnity as may be required by them to save
each of them and any Paying Agent harmless, and neither the Company nor the
Trustee receives notice that such Debt Security or Coupon has been acquired by
a bona fide purchaser, then the Company shall execute and upon Company Request
the Trustee shall authenticate and make available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertained, a new Debt Security of the same series of like
Stated Maturity and with like terms and conditions and like principal amount,
bearing a number not contemporaneously Outstanding, and, in the case of a
Coupon Security, with such Coupons attached thereto that neither gain nor loss
in interest shall result from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt
Security or Coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Debt Security, pay the
amount due on such Debt Security or Coupon in accordance with its terms;
provided, however, that principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 12.03, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01 or except as
otherwise provided in this Section 3.06, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the Coupons
appertaining thereto.
Upon the issuance of any new Debt 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 respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued
pursuant to this Section shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security or Coupon shall be at any
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47
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities or
Coupons 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 Debt
Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved
(a) Interest on any Registered 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 such Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to the Regular
Record Date. Unless otherwise specified as contemplated by Section 3.01 with
respect to the Debt Securities of any series, payment of interest on Registered
Securities shall be made at the place or places specified pursuant to Section
3.01 or, at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register
or, if provided pursuant to Section 3.01, by wire transfer to an account
designated by the Registered Holder.
(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Holder of the Coupon which has matured on such Interest Payment Date
upon surrender of such Coupon on such Interest Payment Date at an office or
agency of the Company in a Place of Payment located outside the United States
specified pursuant to Section 3.01.
Interest on any Bearer Security (other than a Coupon Security)
which is payable and is punctually paid or duly provided for on any Interest
Payment Date shall be paid to the Holder of the Bearer Security upon
presentation of such Bearer Security and notation thereon on such Interest
Payment Date at an office or agency of the Company in a Place of Payment
located outside the United States specified pursuant to Section 3.01.
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Unless otherwise specified pursuant to Section 3.01, at the
direction of the Holder of any Bearer Security or Coupon payable in Dollars,
payment on such Bearer Security or Coupon will be made by check or, if
agreeable to the Trustee, by wire transfer to a Dollar account maintained by
such Holder outside the United States. If such payment at the offices of all
Paying Agents outside the United States becomes illegal or is effectively
precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.01, at
the direction of the Holder of any Bearer Security or Coupon payable in a
Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or by wire transfer to an
appropriate account maintained by such Holder outside the United States.
Except as provided in this paragraph, no payment on any Bearer Security or
Coupon will be made by mail to an address in the United States or by wire
transfer to an account in the United States.
(c) Any interest on any Debt Security which is payable but is
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall, if such Debt Security is a Registered
Security, forthwith cease to be payable to the Registered Holder on the
relevant Regular Record Date by virtue of his having been such Registered
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 such Registered Securities (or
their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall, at least 25 days prior to the date of the proposed payment,
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency or Currency unit
in which the Debt Securities of such series are payable
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49
(except as otherwise specified pursuant to Section 3.01 or 3.10) 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 date shall be not more
than 20 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 the
Holders of such Registered Securities at their addresses as they
appear in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
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.
(d) Any Defaulted Interest payable in respect of Bearer
Securities of any series shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination
between the Holders of Registered Securities (if any) and Bearer Securities of
such series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the manner provided
in Section 1.05 not more than 20 days and not less than 10 days prior to the
date of the proposed payment.
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50
(e) Subject to the foregoing provisions of this Section, each
Debt Security delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Registered Security which is converted,
interest whose Stated Maturity is after the date of conversion of such
Registered Security shall not be payable.
Section 3.08. Cancellation
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange, credit against any sinking fund or conversion
and all Coupons surrendered for payment or exchange shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee. All Registered
Securities and matured Coupons so delivered shall be promptly cancelled by the
Trustee. All Bearer Securities and unmatured Coupons so delivered shall be
held by the Trustee and, upon instruction by the Company Order, shall be
cancelled or held for reissuance. Bearer Securities and unmatured Coupons held
for reissuance may be reissued only in exchange for Bearer Securities of the
same series and of like Stated Maturity and with like terms and conditions
pursuant to Section 3.05 or in replacement of mutilated, lost, stolen or
destroyed Bearer Securities of the same series and of like Stated Maturity and
with like terms and conditions or the related Coupons pursuant to Section 3.06.
All
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Bearer Securities and unmatured Coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Debt Securities. The Company may at any
time deliver to the Trustee for cancellation any Debt Securities or Coupons
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Debt Securities
previously authenticated hereunder which the Company has not issued, and all
Debt Securities or Coupons so delivered shall be promptly cancelled by the
Trustee. No Debt Securities or Coupons shall be authenticated in lieu of or in
exchange for any Debt Securities or Coupons cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and Coupons held by the Trustee shall be returned to the Company.
The acquisition of any Debt Securities or Coupons by the Company shall not
operate as a redemption or satisfaction of the indebtedness represented thereby
unless and until such Debt Securities or Coupons are surrendered to the Trustee
for cancellation. In the case of any temporary Global Note which shall be
destroyed if the entire aggregate principal amount of the Debt Securities
represented thereby has been exchanged, the certificate of destruction shall
state that all certificates required pursuant to Section 3.04 hereof and
substantially in the form of Exhibit B hereto, to be given by the Euro-clear
Operator or CEDEL, have been duly presented to the Trustee by the Euro-clear
Operator or CEDEL, as the case may be. Permanent Global Notes shall not be
destroyed until exchanged in full for definitive Debt Securities or until
payment thereon is made in full.
Section 3.09. Computation of Interest
Except as otherwise specified pursuant to Section 3.01 for
Debt Securities of any series, interest on the Debt Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities
(a) Except as otherwise specified pursuant to Section 3.01
for Bearer Securities of any series, payment of the principal of (and premium,
if any) and interest on Bearer Securities of such series denominated in any
Currency will be made in such Currency.
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(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect
to the Registered Securities of any series that Holders shall have the option,
subject to paragraphs (e) and (f) below, to receive payments of principal of
(and premium, if any) and any interest on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance reasonably satisfactory
to the Trustee, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by such Holder
or such transferee by written notice to the Trustee (but any such change must
be made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change or election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given
by the Company pursuant to Article Thirteen). Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee by the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant Currency as
provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has
been provided for pursuant to Section 3.01, then not later than the fourth
Business Day after the Election Date for each payment date, the Trustee will
deliver to the Company a written notice specifying, in the Currency in which
each series of the
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Registered Securities is payable, the respective aggregate amounts of principal
of (and premium, if any) and any interest on the Registered Securities to be
paid on such payment date, specifying the amounts so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency
as provided in paragraph (c) above. If the election referred to in paragraph
(c) above has been provided for pursuant to Section 3.01 and if at least one
Holder has made such election, then, on the second Business Day preceding each
payment date, the Company will deliver to the Trustee an Exchange Rate
Officer's Certificate in respect of the Currency payments to be made on such
payment date. The Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (c)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other Currency unit in which any of the Debt
Securities are denominated or payable other than pursuant to an election
provided for pursuant to paragraph (c) above, then with respect to each date
for the payment of principal of (and premium, if any) and any interest on the
applicable Debt Securities denominated or payable in such Foreign Currency, the
ECU or such other Currency unit occurring after the last date on which such
Foreign Currency, the ECU or such other Currency unit was used (the "Conversion
Date"), the Dollar shall be the Currency of payment for use on each such
payment date. The Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Debt Securities with
respect to such payment date shall be the Dollar Equivalent of the Foreign
Currency or, in the case of a Currency unit, the Dollar Equivalent of the
Currency unit, in each case as determined by the Currency Determination Agent,
if any, or, if there shall not be a Currency Determination Agent, then by the
Trustee, in the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with
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respect to the Currency in which payment would have been made in the absence of
such election, such Holder shall receive payment in Dollars as provided in
paragraph (e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency unit" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, and subject to the
provisions of paragraph (i) below, shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation Date with
respect to each payment.
(i) For purposes of this Section 3.10 the following terms
shall have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts
of such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If
after the Conversion Date any
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Component Currency shall be divided into two or more Currencies, the
Specified Amount of such Component Currency shall be replaced by
amounts of such two or more Currencies with appropriate Dollar
equivalents at the Market Exchange Rate on the date of such
replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency unit, including but not
limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such Currency unit, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency unit, be converted into Dollars at
the Market Exchange Rate in effect on the Valuation Date of such
Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record
date (if within 16 or fewer days prior to the Maturity) immediately
preceding the Maturity, and with respect to any series of Debt
Securities whose record date immediately preceding the Maturity is
more than 16 days prior to the Maturity or any series of Debt
Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the
Maturity.
(j) All decisions and determinations of the Trustee or the
Currency Determination Agent, if any, regarding the Dollar Equivalent of the
Foreign Currency, the Dollar Equivalent of the Currency unit and the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company and all Holders of the Debt Securities denominated or payable in the
relevant Currency. In the event of a Conversion Event with respect to a
Foreign Currency, the Company, after learning thereof, will immediately give
written notice thereof to the Trustee (and the Trustee will promptly thereafter
give notice in the manner provided in Section 1.05 to the Holders) specifying
the Conversion Date. In the event of a Conversion Event with respect to the
ECU or any other Currency unit in which Debt Securities are denominated or
payable, the Company, after
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learning thereof, will immediately give written notice thereof to the Trustee
(and the Trustee will promptly thereafter give written notice in the manner
provided in Section 1.05 to the Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning thereof, will
similarly give written notice to the Trustee. The Trustee shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Currency Determination Agent, if any and may,
notwithstanding any other provision of this Indenture, conclusively assume that
no Conversion Event or other event of which it is entitled to notice hereunder
has occurred unless it receives written notice thereof as provided herein, and
shall not otherwise have any duty or obligation to determine such information
independently.
(k) For purposes of any provision of the Indenture where the
Holders of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be
disbursed ratably, the principal of (and premium, if any) and interest on the
Outstanding Debt Securities denominated in a Foreign Currency will be the
amount in Dollars based upon the Market Exchange Rate for Debt Securities of
such series, as of the date for determining whether the Holders entitled to
perform such Act have performed it, or as of the Business Day immediately prior
to the date of such decision or determination by the Trustee, as the case may
be.
Section 3.11. Judgments
If for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or under any Debt Security,
it shall become necessary to convert into any other Currency any amount in the
Currency due hereunder or under such Debt Security, then such conversion shall
be made at the Market Exchange Rate as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to
any such judgment, conversion shall be made on a date
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other than the date payment is made and there shall occur a change between such
Market Exchange Rate and the Market Exchange Rate as in effect on the date of
payment, the Company agrees to pay such additional amounts (if any) as may be
necessary to ensure that the amount paid is equal to the amount in such other
Currency which, when converted at the Market Exchange Rate as in effect on the
date of payment or distribution, is the amount then due hereunder or under such
Debt Security. Any amount due from the Company under this Section 3.11 shall
be due as a separate debt and is not to be affected by or merged into any
judgment being obtained for any other sums due hereunder or in respect of any
Debt Security. In no event, however, shall the Company be required to pay more
in the Currency or Currency unit due hereunder or under such Debt Security at
the Market Exchange Rate as in effect when payment is made than the amount of
Currency stated to be due hereunder or under such Debt Security so that in any
event the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company shall
be entitled to withhold (or be reimbursed for, as the case may be) any excess
of the amount actually realized upon any such conversion over the amount due
and payable on the date of payment or distribution.
Section 3.12. Exchange Upon Default
If default is made in the payments referred to in Section
12.01, the Company hereby undertakes that upon presentation and surrender of a
permanent Global Note to the Trustee (or to any other Person or at any other
address as the Company may designate in writing), on any Business Day on or
after the maturity date thereof the Company will issue and the Trustee will
authenticate and deliver to the bearer of such permanent Global Note duly
executed and authenticated definitive Debt Securities with the same issue date
and maturity date as set out in such permanent Global Note.
Section 3.13. CUSIP Numbers
The Company in issuing the Debt Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such
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numbers either as printed on the Debt Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture
This Indenture, with respect to the Debt Securities of any
series (if all series issued under this Indenture are not to be affected),
shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange or conversion of such
Debt Securities herein expressly provided for or expressly provided in the
terms of the Debt Securities of such series pursuant to Section 3.01, and
rights to receive payments of principal (and premium, if any) and interest on
such Debt Securities) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such
series theretofore authenticated and delivered (other than (i) Debt
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.06, (ii) Coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived under Section 3.05,
(iii) Coupons appertaining to Bearer Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 13.06, and (iv) Debt Securities and
Coupons of such series 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 12.04) have been delivered to the Trustee for
cancellation; or
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(B) all Debt Securities and the Coupons, if any, 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 by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause
(B), has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the
Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Section 3.01 or 3.10) sufficient to pay
and discharge the entire indebtedness on such Debt Securities for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Debt Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be; provided, however, in the event a petition for relief under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or other similar
law, is filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money to
the Company, the obligations of the Company under this Indenture with
respect to such Debt Securities shall not be deemed terminated or
discharged;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with; and
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(4) the Company has delivered to the Trustee an Opinion of
Counsel or a ruling by the Internal Revenue Service to the effect that
such deposit and discharge will not cause Holders of the Debt
Securities of the series to recognize income, gain or loss for Federal
income tax purposes.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations
of the Trustee to any Authenticating Agent under Section 6.14, the obligations
of the Company under Section 12.01, and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in Section 4.01 has
been made, (x) the Holder of a Debt Security is entitled to, and does, elect
pursuant to Section 3.10(c), to receive payment in a Currency other than that
in which the deposit pursuant to Section 4.01 was made, or (y) if a Conversion
Event occurs with respect to the Currency in which the deposit was made or
elected to be received by the Holder pursuant to Section 3.10(c), then the
indebtedness represented by such Debt Security shall be fully discharged to the
extent that the deposit made with respect to such Debt Security shall be
converted into the Currency in which such payment is made.
Section 4.02. Application of Trust Money
Subject to the provisions of the last paragraph of Section
12.04, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the Debt
Securities and Coupons, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default
"Event of Default" wherever used herein with respect to Debt
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, 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 Debt
Security or any payment with respect to the Coupons, if any, of such
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 (and premium,
if any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series; or
(4) 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 any covenant or warranty
which expressly has been included in this Indenture solely for the
benefit of Debt Securities of a series other than such series), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of
such series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
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(5) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or a decree or order
adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, custodian, 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
(6) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other
similar law, or the consent by it to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and
Annulment
If an Event of Default with respect to Debt Securities of any
series at that 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 Debt Securities of such series may declare the principal amount
(or, if any Debt Securities of such series are Discount Securities, such
portion of the principal amount of such Discount Securities as may be specified
in the terms of such Discount Securities) of all the
<PAGE> 70
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Debt Securities of such series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount), plus accrued
and unpaid interest (and premium, if any), shall become immediately due and
payable. Upon payment of such amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Section
3.01 or 3.10), all obligations of the Company in respect of the payment of
principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except
as otherwise provided pursuant to Section 3.01 or 3.10) sufficient to
pay
(A) all overdue installments of interest on all Debt
Securities or all overdue payments with respect to
any Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due
otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest on each Debt Security of such series or upon
overdue payments on any Coupons of such series at the
Overdue Rate, 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; provided, however, that all sums payable
under this clause (D) shall be paid in Dollars;
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and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Debt Security or any payment with respect to any
Coupons when such interest or payment becomes due and payable and such
default continues for a period of 30 days,
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
pursuant to the terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue
Rate; 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.
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If the Company fails to pay such amount 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, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Debt
Securities and Coupons, 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 Debt Securities and Coupons wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities
and Coupons 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 5.04. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, relative to the
Company or any other obligor upon the Debt Securities and Coupons, if any, of a
particular series or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of such
Debt Securities shall then be due and payable as therein expressed or by
declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal 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 (or, if the Debt Securities of such series are Discount
Securities, such portion of the principal amount as
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may be due and payable with respect to such series pursuant to a
declaration in accordance with Section 5.02) (and premium, if any) and
interest owing and unpaid in respect of the Debt Securities and
Coupons of such series and to file such other papers or documents and
take such other actions, including participating as a member, voting
or otherwise, of any committee of creditors appointed in the matter,
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 of such Debt Securities and Coupons
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each
such 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 such Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.07.
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 Debt Securities and any Coupons of such series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession
of Debt Securities
All rights of action and claims under this Indenture or the
Debt Securities and the Coupons, if any, of any series may be prosecuted and
enforced by the Trustee without the possession of any of such Debt Securities
or Coupons or the production thereof
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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 Debt
Securities or Coupons in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(and premium, if any) or interest, upon presentation of the Debt Securities or
Coupons of any series in respect of which money has been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07.
SECOND: Subject to Article Sixteen, to the payment of the
amounts then due and unpaid for principal of (and premium, if any) and
interest on the Debt Securities or Coupons of such series, 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 Debt Securities or Coupons for
principal (and premium, if any) and interest, respectively;
THIRD: Subject to Article Sixteen, the balance, if any, to
the Person or Persons entitled thereto; and
FOURTH: To the Company.
Section 5.07. Limitation on Suits
No Holder of any Debt Security or Coupon of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such 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 Debt Securities of
such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any
other series, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
Section 5.08. 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 Debt Security or of any Coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest on such Debt Security
or Coupon on the respective Stated Maturity or Maturities expressed in such
Debt Security or Coupon (or, in the case of redemption, on the Redemption Date)
and to convert any Debt Security that is convertible and to institute suit for
the enforcement of any such payment and interest thereon and of such right to
convert, and such right shall not be impaired without the consent of such
Holder.
Section 5.09. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative
Except as otherwise expressly provided elsewhere in this
Indenture, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
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shall impair any such right or remedy or constitute a waiver of any such Event
of Default or any acquiescence therein. Every right and remedy given by this
Indenture or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 5.12. Control by Holders
The Holders of a majority in principal amount of the
Outstanding Debt 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 Debt 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 6.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of Debt Securities of
such series not joining in any such direction;
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(4) this provision shall not affect the rights of the Trustee
set forth in Section 6.01(c)(4).
Section 5.13. Waiver of Past Defaults
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series waive, by notice to the Trustee and
the Company, any past default or Event of Default hereunder with respect to
such series and its consequences, except a default
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(1) in the payment of the principal of (or premium, if any)
or interest on any Debt Security of such series, or in the payment of
any sinking fund installment or analogous obligation with respect to
the Debt Securities of such series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article Eleven cannot be modified or amended without the
consent of the Holder of each Outstanding Debt 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 the Debt Securities of such series under this Indenture, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any
Debt Security or any Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder of a Debt
Security or Coupon for the enforcement of the payment of the principal of (or
premium, if any) or interest on such Debt Security or the payment of any Coupon
on or after the respective Stated Maturity or Maturities expressed in such Debt
Security or Coupon (or, in the case of redemption, on or after the Redemption
Date) or for the enforcement of the right to convert any Debt Security of any
series as may be provided in accordance with Section 3.01.
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Section 5.15. Waiver of Stay or Extension Laws
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of
Default with respect to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions 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 with respect to Debt
Securities of any series has occurred and is continuing, the Trustee shall,
with respect to the Debt Securities of such series, 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) subject to Section 6.04, no provision of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that
(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 with respect to
Debt Securities of any series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;
(4) the Trustee shall not be required 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; and
(5) the Trustee shall not be charged with knowledge of any
default or Event of Default or any other act or circumstance upon the
occurrence of which the Trustee may be required to take action unless
a Responsible Officer of the Trustee obtains actual knowledge of such
default, Event of Default, act or circumstance or unless written
notice referencing this Indenture or the Debt Securities is received
by the Trustee at the Corporate Trust Office.
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(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 6.02. Notice of Defaults
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities or Coupons, if any, of any series, the Trustee
shall give notice to all Holders of Debt Securities and Coupons of such series
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 Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Debt Securities
and of Coupons of such series; and provided, further, that in the case of any
default of the character specified in Section 5.01(4) with respect to Debt
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 Debt Securities of
such series.
Notice given pursuant to this Section 6.02 with respect to
Registered Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as
have within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose;
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(3) to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.02 with respect to
Bearer Securities shall be transmitted in the manner set forth in Section 1.05.
Section 6.03. Certain Rights of Trustee
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall 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 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 of
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Debt Securities of any series 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; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent (including any agent appointed pursuant
to Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of
Debt Securities
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities or Coupons, if any, of
any series. The Trustee shall not be accountable for the use or application by
the Company of any Debt Securities or the proceeds thereof. The Trustee
assumes no responsibility for the accuracy of any statements in any
registration statement relating to the Debt Securities.
Section 6.05. May Hold Debt Securities
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities or Coupons, and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
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Section 6.06. Money Held in Trust
Money in any Currency 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. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.07. Compensation and Reimbursement
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
in Dollars as the Company and the Trustee shall from time to time
agree in writing 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 in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in connection with the administration of the trusts herein set forth
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it
harmless against, any loss, liability, damage, claims or expense,
including taxes (other than taxes based upon, measured by or
determined by income of the Trustee), incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or
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administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section and in addition to its rights under Section 5.06,
the Trustee shall have a claim prior to the Debt Securities and Coupons, if
any, upon all property and funds held or collected by the Trustee as such,
except funds held in trust pursuant to Section 15.03 hereof or for the payment
of amounts due on particular Debt Securities and Coupons. The fees and
expenses incurred by the Trustee in connection with any bankruptcy of the
Company shall constitute fees and expenses of administration provided, however,
that this shall not affect the Trustee's rights as set forth in the preceding
sentence or Section 5.06.
Section 6.08. Disqualification; Conflicting Interests
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section with respect to the Debt Securities of any
series, then, within 90 days after ascertaining that it has such conflicting
interest, and if the default (as hereinafter defined) to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided below, resign with
respect to the Debt Securities of such series, and the Company shall take
prompt steps to have a successor appointed, 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 with respect to the Debt
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit to all Holders of Debt Securities of
such series notice of such failure.
Notice given pursuant to this Section 6.08(b) with respect to
Registered Securities shall be transmitted by mail:
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(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose;
(3) to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.08(b) with respect to Bearer Securities
shall be transmitted in the manner set forth in Section 1.05.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Debt Securities of
any series, if there shall exist an Event of Default (as such term is defined
herein, but exclusive of any period of grace or requirement of notice) with
respect to such Debt Securities and
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Debt Securities of any series other than that
series or 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 Debt Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Debt Securities of any
series other than that series and any other indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
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(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally 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 with respect to the Debt
Securities of such series and one or more other series or 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 with respect to the Debt Securities of such
series and such other series or under 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 with respect to the Debt Securities of such series
and such other series or 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 this Indenture with respect to the Debt Securities of
such series and such other series or under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive officers
is 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 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
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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 Debt 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, 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 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, 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;
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(9) the Trustee owns, on the date of such Event of Default or
any anniversary of such Event of Default while such Event of Default
remains outstanding, 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 not more
than 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 the dates of any such Event of Default and annually in each
succeeding year that such Event of Default continues, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company fails to
make payment in full of the principal of (or premium, if any) or
interest on any of the Debt 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 be considered as though
beneficially owned by the Trustee for the purposes of paragraphs (6),
(7) and (8) of this subsection; or
(10) except under the circumstances described in paragraph
(1), (3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the
Trustee shall be or shall become a creditor of the Company.
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For the purposes of paragraph (1) of this subsection, the term
"series of securities" or "series" means a series, class or group of securities
issuable under an indenture pursuant to whose terms holders of one such series
may vote to direct the Trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another series; provided, that "series
of securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
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 one year 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
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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
estate, 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 arrangements 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 any obligor upon the Debt
Securities of any series.
(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
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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 with 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;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
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(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.
(f) Except in the case of a default in the payment of the
principal of or interest on any Debt Security of any series, or in the payment
of any sinking or purchase fund installment, the Trustee shall not be required
to resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that:
(1) the Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
Section 6.09. 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 $50,000,000, subject to supervision or examination by
Federal, State or District of Columbia authority and eligible to act as Trustee
hereunder in compliance with Section 310(a)(1) of
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the Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
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. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of
Successor
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Debt Securities of one or more series 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 with respect to the
Debt Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Debt Securities of any series, and a successor Trustee appointed, by Act of
the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(a)
with respect to the Debt Securities of any series after written
request therefor by the Company or by any Holder who has been a bona
fide Holder of a Debt Security of such series for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 6.09
with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee for the Debt Securities of
such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Debt Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Debt Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debt Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, the Trustee or any Holder who has been a
bona fide Holder of a Debt Security of such series for at least six months may,
subject to Section 5.14,
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on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt Securities
of any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its corporate trust office.
Section 6.11. Acceptance of Appointment by Successor
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, each such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee,
but, on 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 claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt
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Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Debt Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debt Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities
of that or those series to which the appointment of such successor Trustee
relates, but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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Section 6.12. Merger, Conversion, Consolidation or Succession
to Business
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that 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 Debt
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 Debt
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Debt Securities. In case any Debt Securities
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Debt Securities, in either
its own name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.
Section 6.13. 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 three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such 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
Debt Securities and of the Coupons, if any, 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 three-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 voluntary or involuntary case had
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been commenced in respect of the Company under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal
or State bankruptcy, insolvency or other similar law upon the date of
such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three-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 or
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar 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 three-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 three-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 three months, or
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(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 three-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 filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted or any other
applicable Federal or State bankruptcy, insolvency or other similar 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 laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar 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 laws, as now
or hereafter constituted, or any other applicable Federal or State bankruptcy,
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insolvency or other similar 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 and 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 claim, 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 three-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 three-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
three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three 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;
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(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 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 Debt 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
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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 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 Debt
Securities.
Section 6.14. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding,
upon a Company Request, there shall be an authenticating agent (the
"Authenticating Agent") appointed, for such period as the Company shall elect,
by the Trustee for such series of Debt Securities to act as its agent on its
behalf and subject to its direction in connection with the authentication and
delivery of each series of Debt Securities for which it is serving as Trustee.
Debt Securities of each such series authenticated by such Authenticating Agent
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and delivery of Debt
Securities of any series by the Trustee for such series or to the Trustee's
Certificate of Authentication, such
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reference shall be deemed to include authentication and delivery on behalf of
the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for 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 any 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 any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series of Debt Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee for such series or such
Authenticating Agent. Any Authenticating Agent may at any time, and if it
shall cease to be eligible shall, resign by giving written notice of
resignation to the applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 1.05. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become
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vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Debt Securities of such series agrees to pay to
the Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment, subject to the provisions of Section 6.07. The
Authenticating Agent for the Debt Securities of any series shall have no
responsibility or liability for any action taken by it as such in good faith
and without negligence at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made
pursuant to this Section, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the series of Debt Securities referred to in
the within mentioned Indenture.
,
---------------------------------------
As Trustee
Dated: By:
-----------------------------------
As Authenticating Agent
By:
-------------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses
of Holders
The Company will furnish or cause to be furnished to the
Trustee with respect to Registered Securities of each series for which it acts
as Trustee:
(a) semi-annually on a date not more than 15 days after each
Regular Record Date with respect to an Interest Payment Date, if any, for the
Registered Securities of such series (or on semi-annual dates in each year to
be determined pursuant to Section 3.01 if the Registered Securities of such
series do not bear interest), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as of
the date 15 days next preceding each such Regular Record Date (or such
semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in
writing, within 15 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee
at all such times set forth above all information in the possession or control
of the Company or any of its Paying Agents other than the Trustee as to the
names and addresses of the Holders of Bearer Securities of all series;
provided, however, that the Company shall have no obligation to investigate any
matter relating to any Holders of Bearer Securities of any series.
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Section 7.02. Preservation of Information; Communication to
Holders
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
Holders contained in the most recent list furnished to the Trustee as provided
in Section 7.01 received by it in the capacity of Paying Agent (if so acting)
hereunder, and filed with it within the two preceding years pursuant to Section
7.03(c)(2).
The Trustee may destroy any list furnished to it as provided
in Section 7.01 upon receipt of a new list so furnished, destroy any
information received by it as Paying Agent (if so acting) hereunder upon
delivering to itself as Trustee, not earlier than 45 days after an Interest
Payment Date, a list containing the names and addresses of the Holders obtained
from such information since the delivery of the next previous list, if any,
destroy any list delivered to itself as Trustee which was compiled from
information received by it as Paying Agent (if so acting) hereunder upon the
receipt of a new list so delivered, and destroy not earlier than two years
after filing, any information filed with it pursuant to Section 7.03(c)(2).
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt 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
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities
with respect to their rights under this Indenture or under the Debt 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
7.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debt Securities of such series or of all Debt Securities,
as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 7.02(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, specified in such
application.
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If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon written request of such
applicants, mail to the Holders of Debt Securities of such series or all
Holders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
7.02(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 of mailing, unless within five days after such tender, the
Trustee shall mail 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
interests of the Holders of Debt Securities of such series or all Holders, as
the case may be, 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 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 of Debt Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee 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 7.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing of any material pursuant to a request made under Section 7.02(b).
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Section 7.03. Reports by Trustee
(a) Within 60 days after May 15 of each year, commencing May
15, 1995, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.03, a
brief report dated as of such date with respect to any of the following events
which may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under
Section 6.09 and its qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.08(c) of this
Indenture;
(3) 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 claims or may
claim a lien or charge, prior to that of the Debt Securities of such
series, 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 Outstanding
Debt Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or any other obligor
on the Debt Securities of such series) 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 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee
has not previously reported; and
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(7) 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 Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02(a)) for
which it acts as the Trustee, as hereinafter provided, 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 claims or may claim a lien or charge, prior to that
of the Debt Securities of such series, 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 for each series 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 Debt Securities of
such series Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) Reports pursuant to this Section 7.03 with respect to
Registered Securities shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the
Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b)
of this Section 7.03, to each Holder of a Debt Security of any series
whose name and address appear in
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the information preserved at the time by the Trustee in accordance
with Section 7.02(a).
Reports pursuant to this Section 7.03 with respect to Bearer Securities shall
be published in accordance with Section 1.05.
(d) 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 Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
Section 7.04. Reports by Company
The Company will:
(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, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will 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, as amended, in respect of a security listed and
registered on a national securities exchange as may be required 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
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(3) transmit to all Holders of Debt Securities, in the manner
and to the extent provided in Section 7.03, 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
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders
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 or
proxy 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. Whenever in this
Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Outstanding Debt Securities of any series may
take any Act, the fact that the Holders of such specified percentage have
joined therein may be evidenced (a) by the instrument or instruments executed
by Holders in person or by agent or proxy appointed in writing, or (b) by the
record of Holders voting in favor thereof at any meeting of such Holders duly
called and held in accordance with the provisions of Article Nine, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Holders.
<PAGE> 113
106
Section 8.02. Proof of Ownership; Proof of Execution of
Instruments by Holder
The ownership of Registered Securities of any series shall be
proved by the Security Register for such series or by a certificate of the
Security Registrar for such series.
The ownership of Bearer Securities shall be proved by
production of such Bearer Securities or by a certificate executed by any bank
or trust company, which certificate shall be dated and shall state that on the
date thereof a Bearer Security bearing a specified identifying number or other
mark was deposited with or exhibited to the person executing such certificate
by the person named in such certificate, or by any other proof of possession
reasonably satisfactory to the Trustee. The holding by the person named in any
such certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 3.01, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05,
proof of the execution of a writing appointing an agent or proxy and of the
execution of any instrument by a Holder or his agent or proxy shall be
sufficient and conclusive in favor of the Trustee and the Company if made in
the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the
manner provided in Section 9.06.
The Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section so long as the
request is a reasonable one.
<PAGE> 114
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Section 8.03. Persons Deemed Owners
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest, if any, on such Registered Security and for all other
purposes whatsoever, whether or not such Registered 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. The Company, the Trustee, and any
agent of the Company or the Trustee may treat the Holder of any Bearer Security
or of any Coupon as the absolute owner of such Bearer Security or Coupon for
the purposes of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or Coupon 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. All payments made to
any Holder, or upon his order, shall be valid, and, to the extent of the sum or
sums paid, effectual to satisfy and discharge the liability for moneys payable
upon such Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any Act by the Holders
of the percentage in aggregate principal amount of the Outstanding Debt
Securities specified in this Indenture in connection with such Act, any Holder
of a Debt Security the number, letter or other distinguishing symbol of which
is shown by the evidence to be included in the Debt Securities the Holders of
which have consented to such Act may, by filing written notice with the Trustee
at the Corporate Trust Office and upon proof of ownership as provided in
Section 8.02, revoke such Act so far as it concerns such Debt Security. Except
as aforesaid, any such Act taken by the Holder of any Debt Security shall be
conclusive and binding upon such Holder and, subject to the provisions of
Section 5.08, upon all future
<PAGE> 115
108
Holders of such Debt Security and all past, present and future Holders of
Coupons, if any, appertaining thereto and of any Debt Securities and Coupons
issued on transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or Coupons or such other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings
A meeting of Holders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Nine for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default or Event of Default
hereunder and its consequences, or to take any other action authorized
to be taken by Holders pursuant to any of the provisions of Article
Five;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
applicable law.
Section 9.02. Call of Meetings by Trustee
The Trustee for any series may at any time call a meeting of
Holders of such series to take any action specified in Section 9.01, to be held
at such time or times and at such place
<PAGE> 116
109
or places as the Trustee for such series shall determine. Notice of every
meeting of the Holders of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given to Holders of such series in the manner and to the
extent provided in Section 1.05. Such notice shall be given not less than 20
days nor more than 90 days prior to the date fixed for the meeting.
Section 9.03. Call of Meetings by Company or Holders
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Debt Securities of a series or of all series, as the case may be,
shall have requested the Trustee for such series to call a meeting of Holders
of any or all such series by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 20 days after the receipt of such
request, then the Company or such Holders may determine the time or times and
the place or places for such meetings and may call such meetings to take any
action authorized in Section 9.01, by giving notice thereof as provided in
Section 9.02.
Section 9.04. Qualifications for Voting
To be entitled to vote at any meeting of Holders a Person
shall be (a) a Holder of a Debt Security of the series with respect to which
such meeting is being held or (b) a Person appointed by an instrument in
writing as agent or proxy by such Holder. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee for the series with respect to which such
meeting is being held and its counsel and any representatives of the Company
and its counsel.
<PAGE> 117
110
Section 9.05. Regulations
Notwithstanding any other provisions of this Indenture, the
Trustee for any series may make such reasonable regulations as it may deem
advisable for any meeting of Holders of such series, in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of such series as provided in Section 9.03, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at
any meeting each Holder of a Debt Security of the series with respect to which
such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Outstanding
Debt Securities of such series held by him or instruments in writing duly
designating him as the person to vote on behalf of Holders of Debt Securities
of such series. Any meeting of Holders with respect to which a meeting was
duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned
from time to time by a majority of such Holders present and the meeting may be
held as so adjourned without further notice.
Section 9.06. Voting
The vote upon any resolution submitted to any meeting of
Holders with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Debt
Securities held or
<PAGE> 118
111
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be taken and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was transmitted as
provided in Section 9.02. The record shall show the serial numbers of the Debt
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 9.07. No Delay of Rights by Meeting
Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture or of the Debt Securities of any series.
ARTICLE TEN
INTENTIONALLY OMITTED
<PAGE> 119
112
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of
Holders
Without prior notice to or the consent of any Holders, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the
rights of the Company and the assumption by such successor of the
covenants and other obligations of the Company herein and in the Debt
Securities and Coupons, if any, contained; or
(2) to add to the covenants of the Company, for the benefit
of the Holders of all or any series of Debt Securities and the
Coupons, if any, appertaining thereto (and if such covenants are to be
for the benefit of less than all series, stating that such covenants
are expressly being included solely for the benefit of such series),
or to surrender any right or power herein conferred upon the Company;
or
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series,
stating that such Events of Default are expressly being included
solely to be applicable to such series); or
(4) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable
or not registrable, and with or without Coupons, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the issuance
of Debt Securities of any series in uncertificated form, provided that
any such action shall not adversely affect the interests of the
Holders of Debt Securities of any series or any related Coupons in any
material respect; 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 Outstanding Debt Security or Coupon of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and as to
which such supplemental indenture would apply; or
<PAGE> 120
113
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article Four or Fifteen, provided that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities or any related
Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and
Coupons, if any, of any series as permitted by Sections 2.01 and 3.01;
or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(10) to make provision with respect to the conversion rights
of Holders of Debt Securities of any series pursuant to the
requirements of Section 17.04, unless otherwise provided pursuant to
Section 3.01; or
(11) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms of this
Indenture or the Debt Securities and the Trust Indenture Act or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with any
provision of this Indenture; provided such other provisions shall not
adversely affect the interests of the Holders of Outstanding Debt
Securities or Coupons, if any, of any series created prior to the
execution of such supplemental indenture in any material respect.
<PAGE> 121
114
Section 11.02. Supplemental Indentures With Consent of
Holders.
With the written consent of the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of each series
affected by such supplemental indenture voting separately, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this Indenture of
such Debt Securities or Coupons, if any; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the
principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the Stated Maturity of or
reduce the amount of any payment to be made with respect to any
Coupon, or change the Currency or Currencies in which the principal of
(and premium, if any) or interest on such Debt Security is denominated
or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or
adversely affect the right of repayment or repurchase, if any, at the
option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions
for any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
limit the obligation of the Company to maintain a paying agency
outside the United States for payment on Bearer Securities as provided
in Section 12.03, or adversely affect the right to convert any Debt
Security into shares of Common Stock of the Company as may be provided
pursuant to Section 3.01; or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of
<PAGE> 122
115
whose Holders is required for any supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults or Events of
Default hereunder and their consequences provided for in this
Indenture; or
(3) modify any of the provisions of this Section, Section
5.13 or Section 12.07, 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 Debt Security of each series affected thereby; provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 12.07, or
the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 11.01(7); or
(4) modify any of the provisions of this Indenture relating
to the subordination of the Debt Securities in a manner adverse to the
Holders.
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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture with respect to one or more
particular series of Debt Securities and Coupons, if any, or which modifies the
rights of the Holders of Debt Securities and Coupons 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 Debt Securities and Coupons, if
any, of any other series.
Section 11.03. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an
<PAGE> 123
116
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise in a material way.
Section 11.04. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Debt Securities and Coupons theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 11.05. 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 11.06. Reference in Debt Securities to Supplemental
Indentures
Debt Securities and Coupons, if any, 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 Debt Securities
and Coupons of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debt Securities and Coupons of such series.
<PAGE> 124
117
Section 11.07. Notice of Supplemental Indenture
Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to Section 11.02,
the Company shall transmit, in the manner and to the extent provided in Section
1.05, to all Holders of any series of the Debt Securities affected thereby, a
notice setting forth in general terms the substance of such supplemental
indenture.
Section 11.08. Effect on Senior Indebtedness
No supplemental indenture shall adversely affect the rights of
any holder of Senior Indebtedness under Article Sixteen without the consent of
such holder.
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest
The Company covenants and agrees for the benefit of each
series of Debt Securities and Coupons, if any, that it will duly and punctually
pay the principal of (and premium, if any) and interest on the Debt Securities
in accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee
for notation thereon of the payment of such interest.
<PAGE> 125
118
Section 12.02. Officer's Certificate as to Default
The Company will deliver to the Trustee, on or before a date
not more than four months after the end of each fiscal year of the Company
(which on the date hereof is the calendar year) ending after the date hereof, a
certificate of the principal executive officer, principal financial officer or
principal accounting officer of the Company stating whether or not to the best
knowledge of the signer thereof the Company is in compliance with all covenants
and conditions under this Indenture, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which such signer may
have knowledge. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 12.03. Maintenance of Office or Agency
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain or cause to be maintained in each Place
of Payment for such series an office or agency where Debt Securities of that
series may be presented or surrendered for payment, where Debt Securities of
that series may be surrendered for registration of transfer or exchange or
redemption, where Debt Securities of that series that are convertible may be
surrendered for conversion, if applicable, and where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. If Debt Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
and State of New York, an office or agency where any Registered Securities of
that series, if any, may be presented or surrendered for payment, where any
Registered Securities of that series, if any, may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption, where Debt Securities of that series
that are convertible may be surrendered for conversion, where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served and where Bearer Securities of that series and
related Coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which
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119
is located outside the United States, an office or agency where Bearer
Securities of that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debt
Securities of that series, if so provided pursuant to Section 3.01); provided,
however, that if the Debt Securities of that series are listed on the London
Stock Exchange, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Debt Securities of that series in
London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Debt Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Debt Securities of that
series may be surrendered for exchange and redemption, where Debt Securities of
that series that are convertible may be surrendered for conversion, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the locations, and any change in the
locations, of such offices or agencies. 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,
except that Bearer Securities of that series and the related Coupons may be
presented and surrendered for payment at the offices specified in the
applicable Debt Security, and the Company hereby appoints the Trustee, or in
the case of Bearer Securities, such other agent as is specified pursuant to
Section 3.01, as its agent to receive all presentations, surrenders, notices
and demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that, if the Debt Securities of a series are denominated and payable
in Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any additional amounts payable on Securities of such
series, if so provided pursuant to Section
<PAGE> 127
120
3.01) shall be made at the office of the Trustee or the Company's Paying Agent
in the Borough of Manhattan, The City and State of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
additional amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or
outside of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.04. Money for Debt 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 Debt Securities and Coupons, if any, it will, on
or before each due date of the principal of (and premium, if any) or interest
on any of the Debt Securities of such 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 action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities and Coupons, it will, by or on each
due date of the principal (and premium, if any) or interest on any Debt
Securities of such series, deposit with any such 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 thereto, and
(unless any such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
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121
The Company will cause each Paying Agent with respect to any
series of Debt 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 Debt Securities of such 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 Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest
on the Debt Securities of such 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.
Subject to any applicable abandoned property law, 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 Debt Security of any series and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company upon Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Debt
Security or Coupon 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
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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, in its
sole discretion, at the expense of the Company cause to be transmitted in the
manner and to the extent provided by Section 1.05, 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 notification, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 12.05. Corporate Existence
The Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
Section 12.06. Purchase of Debt Securities by Company
If the Debt Securities of a series are listed on the London Stock Exchange and
such stock exchange shall so require, the Company will not purchase any Debt
Securities of that series by private treaty at a price (exclusive of expenses
and accrued interest) which exceeds 120% of the mean of the nominal quotations
of the Debt Securities of that series as shown in The Stock Exchange Daily
Official List for the last trading day preceding the date of purchase.
Section 12.07. Waiver of Certain Covenants
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 12.05 (and, if so
specified pursuant to Section 3.01, any other covenant not set forth herein and
specified pursuant to Section 3.01 to be applicable to the Debt Securities of
any series, except as otherwise provided pursuant to Section 3.01) with
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respect to the Debt Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Debt 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 expressly so
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 THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article
Debt Securities of any series which are redeemable before
their Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified pursuant to Section 3.01 for Debt Securities of any
series) in accordance with this Article.
Section 13.02. Election to Redeem; Notice to Trustee
The election of the Company to redeem (or, in the case of
Discount Securities, to permit the Holders to elect to surrender for
redemption) any Debt Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of less than all of the
Debt Securities of any series pursuant to Section 13.03, the Company shall, at
least 60 days before 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 Debt Securities of such series
to be redeemed. In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restrictions.
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Section 13.03. Selection by Trustee of Debt Securities to Be
Redeemed
Except in the case of a redemption in whole of the Bearer
Securities or the Registered Securities of such series, if less than all the
Debt Securities of any series are to be redeemed at the election of the
Company, the particular Debt Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Debt Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Debt Securities of such series or any
integral multiple thereof) of the principal amount of Debt Securities of such
series in a denomination larger than the minimum authorized denomination for
Debt Securities of such series pursuant to Section 3.02 in the Currency in
which the Debt Securities of such series are denominated. The portions of the
principal amount of Debt Securities so selected for partial redemption shall be
equal to the minimum authorized denominations for Debt Securities of such
series pursuant to Section 3.02 in the Currency in which the Debt Securities of
such series are denominated or any integral multiple thereof, except as
otherwise set forth in the applicable form of Debt Securities. In any case
when more than one Registered Security of such series is registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Registered Security of such series.
If any Debt Security selected for partial redemption is
converted in part before termination of the conversion right with respect to
the portion of the Debt Security so selected, the converted portion of such
Debt Security shall be deemed (so far as may be) to be the portion selected for
redemption. Debt Securities which have been converted during a selection of
Debt Securities to be redeemed shall be treated by the Trustee as Outstanding
for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt
Securities shall relate, in the case of any Debt Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Debt
Security which has been or is to be redeemed.
Section 13.04. Notice of Redemption
Notice of redemption 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, not less than 30 days and not more than 60 days prior to the
Redemption Date to the Holders of Debt Securities of any series to be redeemed
in whole or in part pursuant to this Article Thirteen, in the manner provided
in Section 1.05. Any notice so given shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. Failure to
give such notice, or any defect in such notice to the Holder of any Debt
Security of a series designated for redemption, in whole or in part, shall not
affect the sufficiency of any notice of redemption with respect to the Holder
of any other Debt Security of such series.
All notices of redemption shall provide the CUSIP numbers and
shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Debt Securities of such series or a supplemental
indenture establishing such series, if such be the case, together with
a brief statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Debt
Securities to be redeemed,
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(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed,
and that interest thereon, if any, shall cease to accrue on and after
said date,
(6) in the case of Debt Securities of any series that is
convertible, the conversion price, the date on which the right to
convert the principal of the Debt Securities of such series to be
redeemed will terminate and the place or places where such Debt
Securities may be surrendered for conversion,
(7) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price,
(8) the Place or Places of Payment where such Debt Securities
are to be surrendered for payment of the Redemption Price,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and
if such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on this Redemption Date pursuant to Section
3.05(b) or otherwise, the last date on which such exchanges may be
made, and
(10) that the redemption is for a sinking fund, if such is
the case.
Section 13.05. Deposit of Redemption Price
On or prior to the Redemption Date for any Debt Securities,
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 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to
Section 3.01) sufficient to pay the Redemption Price of such Debt Securities or
any portions thereof which are to be redeemed on that date.
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Section 13.06. Debt Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in
accordance with said notice, such Debt Security shall be paid by the Company at
the Redemption Price; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 12.03) and, unless otherwise specified
as contemplated by Section 3.01, only upon presentation and surrender of
Coupons for such interest; and provided, further, that, unless otherwise
specified as contemplated by Section 3.01, installments of interest on
Registered Securities which have a Stated Maturity on or prior to the
Redemption Date for such Debt Securities shall be payable according to the
terms of such Debt Securities and the provisions of Section 3.07.
If any Debt 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 Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced
by an amount equal to the face amount of all such missing Coupons. If
thereafter the Holder of such Coupon shall surrender to any Paying Agent
outside the United States any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted. The surrender of such missing
Coupon or Coupons may be waived by the
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Company and the Trustee, if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless.
Section 13.07. Debt Securities Redeemed in Part
Any Debt Security which is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or such other office or agency of
the Company as is specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 3.01
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, 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 Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified pursuant to Section 3.01 for Debt Securities of such
series.
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The minimum amount of any sinking fund payment provided for by
the terms of Debt 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 Debt Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the terms
of Debt Securities of any series, the amount of any cash sinking fund payment
may be subject to reduction as provided in Section 14.02. Each sinking fund
payment shall be applied to the redemption of Debt Securities of any series as
provided for by the terms of Debt Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund
Payments with Debt Securities
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company
may at its option, at any time no more than sixteen months and no less than 45
days prior to the date on which such sinking fund payment is due, deliver to
the Trustee Debt Securities of such series (together with the unmatured
Coupons, if any, appertaining thereto) theretofore purchased or otherwise
acquired by the Company, except Debt Securities of such series which have been
redeemed through the application of mandatory sinking fund payments pursuant to
the terms of the Debt Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such sinking fund payment and stating that
the Debt Securities of such series were originally issued by the Company by way
of bona fide sale or other negotiation for value, provided that such Debt
Securities shall not have been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
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Section 14.03. Redemption of Debt Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be
satisfactory to the Trustee), 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 payment of cash in the Currency or
Currencies in which the Debt Securities of such series are denominated (except
as provided pursuant to Section 3.01) and the portion thereof, if any, which is
to be satisfied by delivering and crediting Debt Securities of such series
pursuant to Section 14.02 and whether the Company intends to exercise its
rights to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. In the case of the failure of the Company to deliver such certificate,
the sinking fund payment due on the next succeeding sinking fund payment date
for such series shall be paid entirely in cash and shall be sufficient to
redeem the principal amount of the Debt Securities of such series subject to a
mandatory sinking fund payment without the right to deliver or credit Debt
Securities as provided in Section 14.02 and without the right to make any
optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments
made with respect to the Debt Securities of any particular series shall be
applied by the Trustee (or by the Company if the Company is acting as its own
Paying Agent) on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the sinking
fund payment date immediately following the date of such payment) to the
redemption of Debt Securities of such series at the Redemption Price specified
in such Debt Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) to the redemption of Debt Securities
shall be added to the next sinking fund payment received by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 12.04) for such series and, together with such payment (or
such amount so segregated) shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys with
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respect to the Debt Securities of any particular series held by the Trustee (or
if the Company is acting as its own Paying Agent, segregated and held in trust
as provided in Section 12.04) on the last sinking fund payment date with
respect to Debt Securities of such series and not held for the payment or
redemption of particular Debt Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Debt
Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 13.03 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 13.04. Such notice
having been duly given, the redemption of such Debt Securities shall be made
upon the terms and in the manner stated in Section 13.06.
On or before each sinking fund payment date, the Company shall
pay to the Trustee (or, if the Company is acting as its own Paying Agent, the
Company shall segregate and hold in trust as provided in Section 12.04) in cash
a sum, in the Currency or Currencies in which Debt Securities of such series
are denominated (except as provided pursuant to Sections 3.01 or 3.10), equal
to the principal and any interest accrued to the Redemption Date for Debt
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section.
Neither the Trustee nor the Company shall redeem any Debt
Securities of a series with sinking fund moneys or mail any notice of
redemption of Debt Securities of such series by operation of the sinking fund
for such series during the continuance of a default in payment of interest, if
any, on any Debt Securities of such series or of any Event of Default (other
than an Event of Default occurring as a consequence of this paragraph) with
respect to the Debt Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee (or the Company, if the Company is then acting as its own Paying
Agent) shall redeem such Debt Securities if cash sufficient for that purpose
shall be deposited with the Trustee (or segregated by the Company) for that
purpose in accordance with the terms of this
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Article. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of the
Debt Securities and Coupons, if any, of such series; provided, however, that in
case such default or Event of Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on or prior to the
next sinking fund payment date for the Debt Securities of such series on which
such moneys may be applied pursuant to the provisions of this Section.
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article
If, pursuant to Section 3.01, provision is made for the
defeasance of Debt Securities of a series, and if the Debt Securities of such
series are Registered Securities and denominated and payable only in Dollars
(except as provided pursuant to Section 3.01) then the provisions of this
Article shall be applicable except as otherwise specified pursuant to Section
3.01 for Debt Securities of such series. Defeasance provisions, if any, for
Debt Securities denominated in a Foreign Currency or Currencies or for Bearer
Securities may be specified pursuant to Section 3.01.
Section 15.02. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations
At the Company's option, either (a) the Company shall be
deemed to have been Discharged (as defined below) from its obligations with
respect to Debt Securities of any series ("legal defeasance option") or (b) if
so specified pursuant to Section 3.01, the Company shall cease to be under any
obligation to comply with any obligation of the Company or restrictive covenant
added for the benefit of such series pursuant to Section 3.01) ("covenant
defeasance option") at any time after the applicable conditions set forth below
have been satisfied:
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(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Debt Securities of such series (i) money
in an amount, or (ii) U.S. Government Obligations (as defined below)
which through the payment of interest and principal in respect thereof
in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect
to (i) and (ii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if
any, and interest on, the Outstanding Debt Securities of such series
on the dates such installments of interest or principal and premium
are due;
(2) such deposit shall not cause the Trustee with respect to
the Debt Securities of that series to have a conflicting interest as
defined in Section 6.08 and for purposes of the Trust Indenture Act
with respect to the Debt Securities of any series;
(3) 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;
(4) if the Debt Securities of such series are then listed on
any national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel or a letter or other document from
such exchange to the effect that the Company's exercise of its option
under this Section would not cause such Debt Securities to be
delisted;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the legal defeasance option only, no Event of Default under
Section 5.01(5) or Section 5.01(6) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.01(5) shall have occurred and be continuing on the
91st day after such date; and
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(6) the Company shall have delivered to the Trustee an
Opinion of Counsel or a ruling from the Internal Revenue Service to
the effect that such deposit, defeasance or Discharge shall not cause
the Holders of the Debt Securities of such series to recognize income,
gain or loss for Federal income tax purposes.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(5) or Section 5.01(6) or
event which with the giving of notice or lapse of time, or both, would become
an Event of Default under Section 5.01(5) or Section 5.01(6) shall have
occurred and be continuing on the 91st day after the date of such deposit, the
obligations of the Company referred to under the definition of covenant
defeasance option with respect to such Debt Securities shall be reinstated.
Money and securities held in trust pursuant to a legal defeasance shall not be
subject to Article Sixteen.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 3.04, 3.05,
3.06, 6.07, 12.03 and 15.03 and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States for the timely 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
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option
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of the issuer thereof, and 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 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.
Section 15.03. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust
All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 15.02 in respect of Debt Securities of a series
shall be held in trust and applied by it, in accordance with the provisions of
such Debt Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Debt Securities, of all
sums due and to become due thereon for principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Section 15.04. Repayment to Company
The Trustee and any Paying Agent shall promptly pay or return
to the Company upon Company Request any moneys or U.S. Government Obligations
held by them at any time that are not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.02.
The provisions of the last paragraph of Section 12.04 shall
apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
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ARTICLE SIXTEEN
SUBORDINATION
Section 16.01 Agreement to Subordinate
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of Debt Securities of any series (or of any Coupons
appertaining thereto) by his acceptance thereof, likewise covenants and agrees,
that the indebtedness represented by the Debt Securities of such series then
Outstanding (and any Coupons appertaining thereto) and the payment of the
principal of (and premium, if any) and interest on each and all of the Debt
Securities of such series (including, without limitation, any payment of
Coupons appertaining thereto) is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness. Each reference in this Article to
a "Debt Security" or "Debt Securities" refers to the Debt Securities of a
particular series, and references to a "Coupon" or "Coupons" refer to the
Coupons appertaining to the Debt Securities of such series. Without limiting
the generality of the immediately preceding sentence, if more than one series
of Debt Securities are outstanding at any time, (i) the provisions of this
Article shall be applied separately to each such series, and (ii) references to
the Trustee refer to the Trustee for the Debt Securities of such series.
Section 16.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Debt Securities.
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization, of the Company, whether
voluntary or involuntary and whether in bankruptcy, insolvency, reorganization,
receivership or other proceedings or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities of the Company
or otherwise (subject to the power of a court of competent jurisdiction to make
other equitable provision
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reflecting the rights conferred in this Indenture upon the Senior Indebtedness
and the holders thereof with respect to the Debt Securities and the Holders
thereof by a plan of reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon before the Holders of the Debt
Securities (or of any Coupons) are entitled to receive any payment
upon the principal (and premium, if any) or interest on indebtedness
evidenced by the Debt Securities (or any payment of any Coupons); and
(b) any payment or distribution of the Company of any kind or
character, whether in cash, property or securities, to which the
Holders of the Debt Securities (or of any Coupons) or the Trustee
would be entitled except for the provisions of this Article Sixteen
shall be paid by the liquidating trustee or agent or other person
making such payment or distribution, whether a trustee in bankruptcy,
a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness;
and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by the Trustee, any Paying Agent or the Holders of the Debt Securities
(or any Coupons) before all Senior Indebtedness is paid in full, such
payment or distribution shall be paid over, upon written notice to the
Trustee or such Paying Agent, to the holder of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application
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to payment of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 16.02.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Debt Securities (and of any Coupons) shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
Senior Indebtedness until the principal of (and premium, if any) and interest
on the Debt Securities (including, without limitation, payment of the Coupons)
shall be paid in full, and no such payments or distributions to the Holders of
the Debt Securities (or of any Coupons) of cash, property, or securities
otherwise distributable to the holders of Senior Indebtedness shall, as between
the Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Debt Securities (and of any Coupons) be deemed to be a
payment by the Company to or on account of the Debt Securities (or of any
Coupons). It is understood that the provisions of this Article Sixteen are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Debt Securities (and of any Coupons), on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Debt Securities (or any Coupons) is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Debt Securities (and of any Coupons), the
obligation of the Company, which is unconditional and absolute, to pay to the
Holders of the Debt Securities (and of any Coupons) the principal of (and
premium, if any) and interest on the Debt Securities (including, without
limitation, payment of any Coupons) as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of
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the Holders of the Debt Securities (or of any Coupons) and creditors of the
Company other than the holders of Senior Indebtedness, nor shall anything
herein or in the Debt Securities (or Coupons) prevent the Trustee or the Holder
of any Debt Security (or any Coupon) from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Sixteen of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Section 16.02, the Trustee and any Paying Agent, subject to
the provisions of Section 6.03, shall be entitled to rely upon a certificate or
other writing of the liquidating trustee or agent or other Person making any
distribution to the Trustee for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of 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 to this Article Sixteen.
Except as specifically set forth herein, neither the Trustee
nor any Paying Agent, however, shall be deemed to owe any fiduciary or other
duty to the holders of Senior Indebtedness. Neither the Trustee nor any Paying
Agent shall be liable to any such holder if it shall in good faith pay or
distribute to or on behalf of Holders of Debt Securities (or of any Coupons) of
the Company moneys or assets to which any holder of Senior Indebtedness shall
be entitled by virtue of this Article Sixteen or any other instrument.
If the Trustee or any Holder of Debt Securities (and of any
Coupons) does not file a proper claim or proof of debt in the form required in
any proceeding referred to above prior to 30 days before the expiration of the
time to file such claim in such proceeding, then the holder of any Senior
Indebtedness is hereby authorized, and has the right, to file an appropriate
claim or claims for or on behalf of such Holder of Debt Securities (or of any
Coupons).
Section 16.03. No Payment on Debt Securities in Event of
Default on Senior Indebtedness
No payment by the Company on account of principal (or premium,
if any), sinking funds or interest on the Debt Securities (including, without
limitation, payment of any Coupons) shall be made unless full payment of
amounts then due for principal, premium, if any, sinking funds, and interest on
Senior Indebtedness has been made or duly provided for.
Section 16.04. Payments on Debt Securities Permitted
Nothing contained in this Indenture or in any of the Debt
Securities (or any Coupons) shall (a) affect the obligation of the Company to
make, or prevent the Company from making, at any time except as provided in
Sections 16.02 and 16.03, payments of principal (and premium, if any) or
interest on the Debt Securities (including, without limitation, payment of any
Coupons) or (b) prevent the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest on the Debt Securities (including, without
limitation, the payment of any Coupons), unless the Trustee shall have received
at its Corporate Trust Office written notice of any event prohibiting the
making of such payment more than two Business Days prior to the date fixed for
such payment.
Section 16.05. Authorization of Holders to Trustee to Effect
Subordination
Each Holder of Debt Securities (or of any Coupons) by his
acceptance thereof and any Paying Agent (other than the Company) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Sixteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 16.06. Notices to Trustee
The Company shall give prompt written notice to the Trustee
and any Paying Agent (other than the Company) of any fact known to the Company
which would prohibit the making of any
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payment to or by the Trustee or such Paying Agent in respect of the Debt
Securities (or any Coupons) pursuant to this Article Sixteen. Failure to give
such notice shall not affect the subordination of the Debt Securities (or any
Coupons) to Senior Indebtedness. Notwithstanding the provisions of this
Article or any other provisions of this Indenture, neither the Trustee nor any
Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Indebtedness or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received (in the
case of the Trustee, at its Corporate Trust Office) written notice thereof from
the Company or from the holder of any Senior Indebtedness or from the trustee
for any such holder, together with proof satisfactory to the Trustee of such
holding of Senior Indebtedness or of the authority of such trustee; provided,
however, that if at least two Business Days prior to the date upon which by the
terms hereof any such moneys may become payable for any purpose (including,
without limitation, the payment of either the principal of (and premium, if
any) or interest on any Debt Security (including, without limitation, the
payment of any Coupons)) the Trustee or any such Paying Agent shall not have
received with respect to such moneys the notice provided for in this Section
16.06, then, anything herein contained to the contrary notwithstanding, the
Trustee or any such Paying Agent shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be received
by it less than two Business Days prior to such date. The Trustee or any such
Paying Agent shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that such a notice has
been given by a holder of Senior Indebtedness or a trustee on behalf of any
such holder. In the event that the Trustee or any such Paying Agent determines
in good faith that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Sixteen, the Trustee or any such Paying
Agent may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee or any such Paying Agent as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Sixteen and, if such
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evidence is not furnished, the Trustee or any such Paying Agent may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 16.07. Trustee as Holder of Senior Indebtedness
Subject to the provisions of Section 6.13, the Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article Sixteen in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.07.
Section 16.08. Modifications of Terms of Senior Indebtedness
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders of the Debt Securities
(or of any Coupons) or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this
Article Sixteen or of the Debt Securities (or of any Coupons) relating to the
subordination thereof.
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Section 16.09. Reliance on Judicial Order or Certificate of
Liquidating Agent
Upon any payment or distribution of assets of the Company
referred to in this Article Sixteen, the Trustee and the Holders of the Debt
Securities (and of any Coupons) shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or upon a certificate of the trustee
in bankruptcy, liquidating trustee, custodian, receiver, assignee for the
benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Debt Securities (or
of any Coupons), for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable therein,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
Section 16.10. Article Sixteen Not to Prevent Events of Default
No provision of this Article Sixteen shall prevent the
occurrence of any default or Event of Default hereunder.
Section 16.11. Certain Conversions Not Deemed Payment
For the purposes of this Article Sixteen only, in the case of
Debt Securities of any series that is convertible, (i) the issuance and
delivery of junior securities (as hereinafter defined) upon conversion of such
Debt Securities in accordance with Article Seventeen shall not be deemed to
constitute a payment or distribution on account of the principal of (or
premium, if any) or interest on such Debt Securities or on account of the
purchase or other acquisition of such Debt Securities, and (2) the payment,
issuance or delivery of cash, property or securities (other than junior
securities) upon conversion of a Debt Security of such series shall be deemed
to constitute payment on account of the principal of such Debt Security. For
the purposes of this Section, the term "junior
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securities" means (a) shares of any stock of any class of the Company and (b)
securities of the Company which are subordinated in right of payment to all
Senior Indebtedness 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 Debt Securities are so subordinated as provided in
this Article Sixteen. Nothing contained in this Article Sixteen or elsewhere
in this Indenture or in the Debt Securities is intended to or shall impair, as
among the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Debt Securities, the right, which is absolute and
unconditional, of the Holder of any Debt Security of any series that is
convertible to convert such Debt Security in accordance with Article Seventeen.
ARTICLE SEVENTEEN
CONVERSION
Section 17.01. Applicability; Conversion Privilege
Except as otherwise specified pursuant to Section 3.01 for
Debt Securities of any series, the provisions of this Article Seventeen shall
be applicable to any Debt Securities that are convertible into Common Stock.
Each reference in this Article to a "Debt Security" or "Debt Securities" refers
to the Debt Securities of a particular series that is convertible into Common
Stock, and references to a "Coupon" or "Coupons" refer to the Coupons
appertaining to the Debt Securities of such series. Without limiting the
generality of the immediately preceding sentence, if two or more series of Debt
Securities with conversion privileges are outstanding at any time, (i) the
provisions of this Article shall be applied separately to each such series, and
(ii) references to the Trustee refer to the Trustee for the Debt Securities of
such series. If so provided pursuant to Section 3.01 with respect to the Debt
Securities of any series, the Holder of a Debt Security of such series shall
have the right, at such Holder's option, to convert, in accordance with the
terms of such series of Debt Securities and this Article Seventeen, all or any
part (if the portion to be converted and the remaining portion of such Debt
Security are in authorized denominations for that series of Debt Securities) of
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such Debt Security into shares of Common Stock, at any time during the period
specified in the terms of the Debt Securities of the series pursuant to Section
3.01, at the Conversion Price in effect on the date of conversion, or, as to
any Debt Securities called for redemption at any time prior to the time and
date fixed for such redemption (unless the Company shall default in the payment
of the Redemption Price, in which case such right shall not terminate at such
time and date).
Section 17.02 Conversion Procedure; Conversion Price;
Fractional Shares
(a) Except as otherwise specified as contemplated by Section
3.01 for Debt Securities of any series, each Debt Security of such series to
which this Article is applicable shall be convertible at the office of the
Conversion Agent, and at such other place or places, if any, specified pursuant
to Section 3.01 with respect to the Debt Securities of such series, into fully
paid and nonassessable shares (calculated to the nearest 1/100th of a share) of
Common Stock. The Debt Securities will be converted into shares of Common
Stock at the Conversion Price therefor. No payment or adjustment shall be made
in respect of dividends on the Common Stock or accrued interest on a converted
Debt Security except as described in Section 17.09 and Section 17.02(c). The
Company may, but shall not be required, in connection with any conversion of
Debt Securities, to issue a fraction of a share of Common Stock and, if the
Company shall determine not to issue any such fraction, the Company shall,
subject to Section 17.03(4), make a cash payment (calculated to the nearest
cent) equal to such fraction multiplied by the Closing Price of the Common
Stock on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to
convert the same into Common Stock, such Holder shall surrender such Debt
Security duly endorsed to the Company or in blank, or, in the case of Bearer
Securities, together with all unmatured Coupons and any matured Coupons in
default attached thereto, at the office of the Conversion Agent or at such
other place or places, if any, specified pursuant to Section 3.01 (in the case
of Registered Securities) and at an office of the Conversion Agent or at such
other place or places, if any, outside of the United States as is specified
pursuant to Section 3.01 (in the case of Bearer Securities), and shall give
written
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notice to the Company at said office or place that he elects to convert the
same and shall state in writing therein the principal amount of Debt Securities
to be converted and the name or names (with addresses) in which he wishes the
certificate or certificates for Common Stock to be issued.
If more than one Debt Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares of Common
Stock which shall be deliverable upon conversion shall be computed on the basis
of the aggregate principal amount of the Debt Securities (or specified portions
thereof to the extent permitted thereby) so surrendered. Subject to the next
succeeding sentence, the Company will as soon as practicable after the
surrender of a Debt Security for conversion, issue and deliver at said office
or place to the Holder of a Debt Security, or to his nominee or nominees,
certificates for the number of full shares of Common Stock to which he shall be
entitled as aforesaid, together, subject to the last sentence of paragraph (a)
above, with cash in lieu of any fraction of a share to which he would otherwise
be entitled. The Company shall not be required to delivery certificates for
shares of Common Stock while the stock transfer books for such stock or the
Security Register are duly closed for any purpose, but certificates for shares
of Common Stock shall be issued and delivered as soon as practicable after the
opening of such books or Security Register.
(c) If at the time of surrender pursuant to Section 17.02(a),
the Holder of a Bearer Security is unable to produce all unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such conversion may be
effected if the Bearer Securities to be surrendered for conversion are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to any Paying Agent any such missing Coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that except
as otherwise provided in Section 12.03, interest represented by Coupons shall
be payable only upon presentation and surrender of those Coupons at an office
or agency located outside the United States.
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(d) A Debt Security shall be deemed to have been converted as
of the close of business on the date of the surrender of such Debt Security for
conversion as provided above, and the Person or Persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for all purposes as
the record Holder or Holders of such Common Stock as of the close of business
on such date.
(e) In case any Debt Security shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the Debt
Securities so surrendered, without charge to such Holder (subject to the
provisions of Section 17.08), a new Debt Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Debt Security, together, in the case of Bearer Securities,
with any unmatured Coupons and matured Coupons in default attached thereto.
Section 17.03. Adjustment of Conversion Price for Common Stock
The Conversion Price with respect to any Debt Security which
is convertible into Common Stock shall be adjusted from time to time as
follows:
(1) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, (i) pay a
dividend in shares of its Common stock to holders of Common Stock,
(ii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, (iii) subdivide its outstanding
shares of Common Stock into a greater number of shares of Common Stock
or (iv) make a distribution in shares of Common Stock to holders of
Common Stock, then the Conversion Price in effect immediately before
such action shall be adjusted so that the Holders of such Debt
Securities, upon conversion thereof into Common Stock immediately
following such event, shall be entitled to receive the kind and amount
of shares of capital stock of the Company which they would have owned
or been entitled to receive upon or by reason of such event if such
Debt Securities had been converted immediately before the record date
(or, if no record date, the effective date) for such event. An
adjustment made pursuant to this
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Section 17.03(1) shall become effective retroactively immediately
after the record date in the case of a dividend or distribution and
shall become effective retroactively immediately after the effective
date in the case of a subdivision or combination. For the purposes of
this Section 17.03(1), each Holder of Debt Securities shall be deemed
to have failed to exercise any right to elect the kind or amount of
securities receivable upon the payment of any such dividend,
subdivision, combination or distribution (provided that if the kind or
amount of securities receivable upon such dividend, subdivision,
combination or distribution is not the same for each nonelecting
share, then the kind and amount of securities or other property
receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting
shares).
(2) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, issue rights
or warrants to all or substantially all holders of shares of its
Common Stock entitling them (for a period expiring within 45 days
after the record date for such issuance) to subscribe for or purchase
shares of Common Stock (or securities convertible into shares of
Common Stock) at a price per share less than the Current Market Price
of the Common Stock at such record date (treating the price per share
of the securities convertible into Common Stock as equal to (x) the
sum of (i) the price for a unit of the security convertible into
Common Stock and (ii) any additional consideration initially payable
upon the conversion of such security into Common Stock divided by (y)
the number of shares of Common Stock initially underlying such
convertible security), the Conversion Price with respect to such Debt
Securities shall be adjusted so that it shall equal the price
determined by dividing the Conversion Price in effect immediately
prior to the date of issuance of such rights or warrants by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible securities
so offered are initially convertible), and the denominator of which
shall be the number of shares of Common Stock outstanding on the
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date of issuance of such rights or warrants plus the number of shares
or securities which the aggregate offering price of the total number
of shares or securities so offered for subscription or purchase (or
the aggregate purchase price of the convertible securities so offered
plus the aggregate amount of any additional consideration initially
payable upon conversion of such securities into Common Stock) would
purchase at such Current Market Price of the Common Stock. Such
adjustment shall become effective retroactively immediately after the
record date for the determination of stockholders entitled to receive
such rights or warrants.
(3) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, distribute to
all or substantially all holders of shares of its Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing
corporation and the Common Stock is not changed or exchanged) cash,
evidences of its indebtedness, securities or assets (excluding (i)
regular periodic cash dividends in amounts, if any, determined from
time to time by the Board of Directors (to the extent paid from
current or retained earnings of the Company) or (ii) dividends payable
in shares of Common Stock for which adjustment is made under Section
17.03(1)) or rights or warrants to subscribe for or purchase
securities of the Company (excluding those referred to in Section
17.03(2)), then in each such case the Conversion Price with respect to
such Debt Securities shall be adjusted so that it shall equal the
price determined by dividing the Conversion Price in effect
immediately prior to the date of such distribution by a fraction, the
numerator of which shall be the Current Market Price of the Common
Stock on the record date referred to below, and the denominator of
which shall be such Current Market Price of the Common Stock less the
then fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion of
the cash or assets or evidences of indebtedness or securities so
distributed or of such subscription rights or warrants applicable to
one share of Common Stock (provided that such denominator shall never
be less than 1.0); provided, however, that no adjustment shall be made
with respect to any distribution of rights to purchase securities of
the Company if a Holder of Debt Securities would otherwise be entitled
to receive such
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rights upon conversion at any time of such Debt Securities into Common
Stock unless such rights are subsequently redeemed by the Company, in
which case such redemption shall be treated for purposes of this
section as a dividend on the Common Stock. Such adjustment shall
become effective retroactively immediately after the record date for
the determination of stockholders entitled to receive such
distribution; and in the event that such distribution is not so made,
the Conversion Price shall again be adjusted to the Conversion Price
which would then be in effect if such record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 17.3(1), 17.3(2) and 17.3(3), as shall be necessary in
order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal
income tax purposes.
(5) In any case in which this Section 17.03 shall require
that any adjustment be made effective as of or retroactively
immediately following a record date, the Company may elect to defer
(but only for five (5) Trading Days following the filing of the
statement referred to in Section 17.05) issuing to the Holder of any
Debt Securities converted after such record date the shares of Common
Stock and other capital stock of the Company issuable upon such
conversion over and above the shares of Common Stock and other capital
stock of the Company issuable upon such conversion on the basis of the
Conversion Price prior to adjustment; provided, however, that the
Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(6) All calculations under this Section 17.03 shall be made
to the nearest cent or one-hundredth of a share or security, with
one-half cent and 0.005 of a share, respectively, being rounded
upward. Notwithstanding any other provision of this Section 17.03,
the Company shall not be required to make any adjustment of the
Conversion Price
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unless such adjustment would require an increase or decrease of at
least 1% of such price. Any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment or
adjustments so carried forward, shall amount to an increase or
decrease of at least 1% in such price. Any adjustments under this
Section 17.03 shall be made successively whenever an event requiring
such an adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 17.03, the Holder of any Debt
Security thereafter surrendered for conversion shall become entitled
to receive any shares of stock of the Company other than shares of
Common Stock into which the Debt Securities originally were
convertible, the Conversion Price of such other shares so receivable
upon conversion of any such Debt Security shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common
Stock contained in subparagraphs (1) through (6) of this Section
17.03, and the provision of Sections 17.1, 17.2 and 17.4 through 17.9
with respect to the Common Stock shall apply on like or similar terms
to any such other shares and the determination of the Board of
Directors as to any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i)
if the effect thereof would be to reduce the Conversion Price below
the par value (if any) of the Common Stock or (ii) subject to 17.3(5)
hereof, with respect to any Debt Security that is converted prior to
the time such adjustment otherwise would be made.
Section 17.04. Consolidation or Merger of the Company
In case of either (a) any consolidation or merger to which the
Company is a party, other than a merger or consolidation in which the Company
is the surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value) in, outstanding
<PAGE> 158
151
shares of Common Stock or (b) any sale or conveyance of all or substantially
all of the property and assets of the Company to another Person, then each Debt
Security then outstanding shall be convertible from and after such merger,
consolidation, sale or conveyance of property and assets into the kind and
amount of shares of stock or other securities and property receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock into which such Debt Securities should have been converted
immediately prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article Seventeen (and assuming such holder of
Common Stock failed to exercise his rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such
consolidation, merger, sale or conveyance (provided that, if the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b)
of the preceding sentence unless effective provision shall be made so as to
give effect to the provisions set forth in this Section 17.04. The provisions
of this Section 17.04 shall apply similarly to successive consolidations,
mergers, sales or conveyances.
Section 17.05. Notice of Adjustment
Whenever an adjustment in the Conversion Price with respect to
a series of Debt Securities is required:
(1) the Company shall forthwith place on file
with the Trustee and any Conversion Agent for such Securities a
certificate of the Treasurer of the Company, stating the adjusted
Conversion Price determined as provided herein and setting forth in
reasonable detail such facts as shall be necessary to show the reason
for and the manner of computing such adjustment, such certificate to
be conclusive evidence that the adjustment is correct; and
<PAGE> 159
152
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be given by the Company, or at the Company's request, by the
Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.05. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
Section 17.06. Notice in Certain Events
In case:
(1) of a consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all or substantially all of the property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article Seventeen;
then, in each case, the Company shall cause to be filed with the Trustee and
the Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of applicable Debt Securities in the manner provided in
Section 1.05, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article
Seventeen, or, if a record is not to be taken, the date as of which the holders
of record of Common Stock entitled to such distribution, rights or warrants are
to be determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article Seventeen is
<PAGE> 160
153
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding
up.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in clause (1), (2)
or (3) of this Section.
Section 17.07. Company To Reserve Stock; Registration; Listing
(a) The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
shares of Common Stock, for the purpose of effecting the conversion of the Debt
Securities, such number of its duly authorized shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all applicable
outstanding Debt Securities into such Common Stock at any time (assuming that,
at the time of the computation of such number of shares or securities, all such
Debt Securities would be held by a single holder); provided, however, that
nothing contained herein shall preclude the Company from satisfying its
obligations in respect of the conversion of the Debt Securities by delivery of
purchased shares of Common Stock which are held in the treasury of the Company.
The Company shall from time to time, in accordance with the laws of the State
of Delaware, use its best efforts to cause the authorized amount of the Common
Stock to be increased if the aggregate of the authorized amount of the Common
Stock remaining issued and the issued shares of such Common Stock in its
treasury (other than any such shares reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of all Debt
Securities. The Company covenants that all shares of Common Stock which may be
issued upon conversion of Debt Securities will upon issue be fully paid and
nonassessable and free from all liens and charges and, except as provided in
Section 17.08, taxes with respect to the issue thereof.
(b) If any shares of Common Stock which would be issuable
upon conversion of Debt Securities hereunder require registration with or
approval of any governmental authority before such shares or securities may be
issued upon such conversion, the Company will in good faith and as
expeditiously
<PAGE> 161
154
as possible endeavor to cause such shares or securities to be duly registered
or approved, as the case may be. The Company further covenants that so long as
the Common Stock shall be listed on the NYSE, the Company will, if permitted
by the rules of such exchange, list and keep listed all Common Stock
issuable upon conversion of the Debt Securities, and the Company will endeavor
to list the shares of Common Stock required to be delivered upon conversion of
the Debt Securities prior to such delivery upon any other national securities
exchange upon which the outstanding Common Stock is listed at the time of such
delivery.
Section 17.08. Taxes on Conversion
The issue of stock certificates on conversion of Debt
Securities shall be made without charge to the converting Holder for any tax in
respect of the issue thereof, and the Company shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Debt Securities pursuant hereto. The Company shall not, however, be required
to pay any such tax which may be payable in respect of any transfer involved in
the issue or delivery of shares of Common Stock or the portion, if any, of the
Debt Securities which are not so converted in a name other than that in which
the Debt Securities so converted were registered (in the case of Registered
Securities), and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of such tax or
has established to the satisfaction of the Company that such tax has been paid.
Section 17.09. Conversion After Record Date
If any Registered Securities are surrendered for conversion
subsequent to the record date preceding an Interest Payment Date but on or
prior to such Interest Payment Date (except Registered Securities called for
redemption on a Redemption Date between such record date and Interest Payment
Date), the Holder of such Registered Securities at the close of business on
such record date shall be entitled to receive the interest payable on such
Registered Securities on such Interest Payment Date notwithstanding the
conversion thereof. Registered Securities surrendered for conversion during
the period from the
<PAGE> 162
155
close of business on any record date next preceding any Interest Payment Date
to the opening of business on such Interest Payment Date shall (except in the
case of Registered Securities which have been called for redemption on a
Redemption Date within such period) be accompanied by payment in New York
Clearing House funds or other funds and in the Currency acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the Registered Securities being surrendered for conversion. Except as
provided in this Section 17.09 and Section 17.02(c), no adjustments in respect
of payments of interest on Debt Securities surrendered for conversion or any
dividends or distributions or interest on the Common Stock issued upon
conversion shall be made upon the conversion of any Debt Securities.
Section 17.10. Company Determination Final
Any determination that the Company or the Board of Directors
must make pursuant to this Article shall be conclusive if made in good faith
and in accordance with the provisions of this Article, absent manifest error.
Section 17.11. Trustee's Disclaimer
The Trustee has no duty to determine when an adjustment under
this Article should be made, how it should be made or what it should be. The
Trustee makes no representation as to the validity or value of any securities
or assets issued upon conversion of Debt Securities. The Trustee shall not be
responsible for the Company's failure to comply with this Article. Each
Conversion Agent other than the Company shall have the same protection under
this Section as the Trustee.
_____________
This instrument may be executed in any number of counterparts,
each of which so executed shall constitute an original and all of which
together shall constitute one and the same instrument.
<PAGE> 163
156
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
UNITED COMPANIES FINANCIAL CORPORATION
By: /s/ Laura T. Martin
-----------------------------------
Title: Senior Vice President and Treasurer
--------------------------------
THE BANK OF NEW YORK, as Trustee
By: /s/ Timothy J. Shea
-----------------------------------
Title: Assistant Treasurer
--------------------------------
<PAGE> 164
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
______________________________
[Insert title or sufficient description
of Debt Securities to be delivered]
This certificate is delivered pursuant to the Indenture, dated
as of February 19, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Indenture"), between United Companies Financial Corporation
and The Bank of New York, as Trustee. Unless otherwise defined herein, terms
defined in the Indenture are used herein as so defined.
This is to certify that as of the date hereof and except as
set forth below ___________ principal amount of the above captioned securities
(the "Debt Securities") held by you for our account (i) is owned by person(s)
that are not United States person(s) (as defined below), (ii) is owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their
own account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise the Company or the Company's agent that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the Treasury regulations
thereunder), or (iii) is owned by United
<PAGE> 165
2
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this
is to further certify that such financial institution has not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the beneficial interest in the temporary Global Note held by you for our
account in accordance with your operating procedures if any applicable
statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to ___________
principal amount of Debt Securities held by you for our account as to which we
are not able to provide a certificate in this form. We understand that
exchange of such portion of the temporary Global Note for definitive Bearer
Securities or interests in a permanent Global Note cannot be made until we are
able to provide a certificate in this form.
We understand that this certificate is required in connection
with certain tax laws and regulations of the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source. "United States" means the United States of America (including
the States and the District of Columbia) and its "possessions" which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
Dated: , 19
------------------------ --
[To be dated no earlier than the 10th day before the Exchange Date]
By:
-----------------------------------
As, or as agent for, the
beneficial owner(s) of the
portion of the temporary
global Note to which this
certificate relates.
<PAGE> 166
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
__________________________
(Insert title or sufficient description
of Debt Securities to be delivered]
This certificate is delivered pursuant to the Indenture, dated
as of February 19, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Indenture"), between United Companies Financial Corporation
and The Bank of New York, as Trustee. Unless otherwise defined herein, terms
defined in the Indenture are used herein as so defined.
The undersigned certifies that, based solely on certifications
we have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture as of the date hereof,
__________ principal amount of the above-captioned Debt Securities (i) is owned
by person(s) that are not United States person(s) (as defined below), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their
own account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
<PAGE> 167
2
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the Treasury regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for the purpose of
resale during the restricted period (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations), and in
addition United States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Debt Securities for the purpose of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
We further certify (i) that we are not making available for
exchange or collection of any interest any portion of the temporary Global Note
excepted in such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange or collection of any
interest are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection
with certain tax laws and regulations of the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source. "United States" means the United States of America (including
the States and the District of Columbia) and its "possessions" which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
Dated: , 19
------------------------ --
[To be dated no earlier than the Exchange Date]
By:
------------------------------------
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the
Euro-Clear System]
[CEDEL, S.A.]
<PAGE> 1
EXHIBIT 4.10
THIS CERTIFICATE IS TRANSFERABLE IN DALLAS, TEXAS AND NEW YORK, NEW YORK
Number Shares
NX 41348
Incorporated The State
Under of
The Laws of Louisiana
UNITED COMPANIES FINANCIAL CORPORATION
COMMON STOCK CUSIP 909870 10 7
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT is the owner of
SHARES OF THE COMMON STOCK OF THE PAR VALUE OF $2.00 PER SHARE OF
UNITED COMPANIES FINANCIAL CORPORATION
transferable on the books of the Corporation by the holder hereof in person or
by Attorney upon surrender of this Certificate properly endorsed. This
Certificate is not valid unless countersigned and registered by the Transfer
Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Countersigned and Registered: Dated:
ChaseMellon Shareholder Services, L.L.C.
Transfer Agent and Registrar /s/ J. Terrell Brown
-----------------------
Chairman
By: /s/ Sherry E. Anderson
---------------------------- -----------------------
Authorized Officer Secretary
UNITED COMPANIES
FINANCIAL CORPORATION
CORPORATE
SEAL
1972
<PAGE> 2
This corporation will furnish to any shareholder upon request and without
charge, a summary of the designations, relative rights, preferences and
limitations of the shares of each class and of each series of each preferred or
special class of its authorized capital stock, so far as the same have been
fixed, and the authority of the board to establish other series and to fix the
relative rights, preferences and limitations of the shares of any class or
series by amendment of the articles.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT Custodian
-------------
TEN ENT - as tenants by the (Cust) (Minor)
entireties under Uniform
Gifts to Minors
JT TEN - as joint tenants with Act____________
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may be used though not in the above list.
For value received, ________________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
Please Print or Typewrite Name and Address Including Postal Zip Code
________________________________________________________________________________
_________________________________________________________________________ Shares
of the Common Stock represented by the within Certificate and do hereby
irrevocably constitute and appoint
Attorney to transfer the said stock on the books of the within-named
<PAGE> 3
Corporation with full power of substitution in the premises.
Dated, ____________________
______________________________
(Signature must correspond
with the name on face of
Certificate)
(SIGNATURE GUARANTEED)
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between United Companies Financial
Corporation and ChaseMellon Shareholder Services, L.L.C. (formerly Chemical
Bank), dated as of July 27, 1994 (the "Rights Agreement"), the terms of which
are hereby incorporated herein by reference and a copy of which is on file at
the principal executive offices of United Companies Financial Corporation.
Under certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced by
this certificate. United Companies Financial Corporation will mail to the
holder of this certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. Under certain circumstances, as set
forth in the Rights Agreement, Rights issued to any Person who becomes an
Acquiring Person (as defined in the Rights Agreement) may become null and void.
<PAGE> 1
EXHIBIT 4.11
================================================================================
DEPOSIT AGREEMENT
among
UNITED COMPANIES FINANCIAL CORPORATION,
_________________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of __________, 19__
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I.
Definitions
ARTICLE II.
Form of Receipts, Deposit of Shares, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1 Form and Transfer of Receipts . . . . . . . . . . . . . . 2
Section 2.2. Deposit of Shares; Execution and Delivery of Receipts in
Respect Thereof . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3. Redemption of Shares . . . . . . . . . . . . . . . . . . . 4
Section 2.4. Registration of Transfer of Receipts . . . . . . . . . . . 5
Section 2.5. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Shares . . . . . . . . . . . . 5
Section 2.6. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts . . . . . . . . . . . . . . . . . 6
Section 2.7. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . 7
Section 2.8. Cancellation and Destruction of Surrendered Receipts . . . 7
ARTICLE III.
Certain Obligations of the Holders of Receipts and the Company
Section 3.1. Filing Proofs, Certificates and Other Information . . . . . 7
Section 3.2. Payment of Taxes or Other Governmental Charges . . . . . . 7
Section 3.3. Warranty as to Shares . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV.
The Deposited Securities; Notices
Section 4.1. Cash Distributions . . . . . . . . . . . . . . . . . . . . . 8
Section 4.2. Distributions Other than Cash . . . . . . . . . . . . . . . 8
Section 4.3. Subscription Rights, Preferences or Privileges . . . . . . . 8
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 4.4. Notice of Dividends, etc; Fixing of Record Date for Holders of
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.5. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc . . . . . . . . . 10
Section 4.7. Inspection of Reports . . . . . . . . . . . . . . . . . . . 10
Section 4.8. Lists of Receipt Holders . . . . . . . . . . . . . . . . . . 11
ARTICLE V.
The Depositary, the Depositary's Agents, the Registrar and Company
Section 5.1. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar . . . . . . . . . . . . . . . . . . . 11
Section 5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company . . . . . 11
Section 5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company . . . . . . . . . . . . . . . . . 12
Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary . . . . . . . . . . . . . . . . . . . . 13
Section 5.5. Corporate Notices and Reports . . . . . . . . . . . . . . . 13
Section 5.6. Indemnification by the Company . . . . . . . . . . . . . . . 14
Section 5.7. Charges and Expenses . . . . . . . . . . . . . . . . . . . . 14
Section 5.8. Retention of Depositary Documents . . . . . . . . . . . . . 15
ARTICLE VI.
Amendment and Termination
Section 6.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.2. Termination . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII.
Miscellaneous
Section 7.1. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.2. Exclusive Benefit of Parties . . . . . . . . . . . . . . . . 15
Section 7.3. Invalidity of Provisions . . . . . . . . . . . . . . . . . . 15
Section 7.4. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.5. Depositary's Agents . . . . . . . . . . . . . . . . . . . . 16
Section 7.6. Holders of Receipts Are Parties . . . . . . . . . . . . . . 16
Section 7.7. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 7.8. Inspection of Deposit Agreement . . . . . . . . . . . . . . 16
Section 7.9. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . 17
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 17
Exhibit A: Depositary Receipt . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
iii
<PAGE> 5
DEPOSIT AGREEMENT
dated as of __________, 19__,
among
UNITED COMPANIES FINANCIAL CORPORATION,
a Louisiana corporation,
__________, a __________ corporation,
and the holders
from time to time of the Receipts
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [insert designation of
preferred stock] of UNITED COMPANIES FINANCIAL CORPORATION with the Depositary
for the purposes set forth in this Deposit Agreement and for the issuance
hereunder of Receipts (as hereinafter defined) evidencing Depositary Shares (as
hereinafter defined), in respect of the Shares (as hereinafter defined) so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
attached hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
ARTICLE I.
Definitions
"Articles of Amendment" shall mean the Articles of Amendment filed
with the Secretary of State of Louisiana establishing the Shares as a series of
preferred stock of the Company.
"Company" shall mean United Companies Financial Corporation, a
Louisiana corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
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"Depositary" shall mean __________, and any successor as Depositary
hereunder.
"Depositary Shares" shall mean depositary shares, each representing
[specify fraction] interest in a Share and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the principal office of the
Depositary in [The City of New York], at which at any particular time its
depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Redemption Date" shall have the meaning given to such term in Section
2.3.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfer of Receipts as herein provided.
"Shares" shall mean shares of the Company's [insert designation of
preferred stock].
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ARTICLE I.
Form of Receipts, Deposit of Shares, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and
shall be substantially in the form set forth in Exhibit A attached to this
Deposit Agreement and incorporated herein by reference, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company or any holder of Shares, as the case may be, delivered in
compliance with Section 2.2, shall execute and deliver temporary Receipts which
are printed, lithographed, typewritten, photocopied or otherwise substantially
of the tenor of the definitive Receipts in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at the office described in Section 2.2, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Agreement, and with respect to the Shares, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are counter-signed by
manual signature of a duly authorized officer of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a
duly authorized officer of the Depositary or, if a Registrar for the Receipts
shall have been appointed, by manual or facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of __________ Depositary Shares for any
particular Receipt.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Shares,
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<PAGE> 8
the Depositary Shares or the Receipts may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
Section 2.2. Deposit of Shares; Execution and Delivery of Receipts
in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit Shares under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for
the Shares to be deposited, properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order of the Depositary, the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary Shares
representing interests in such deposited Shares.
Deposited Shares shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Shares deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Shares on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt for the number of Depositary
Shares relating to the Shares so deposited and registered in such name or names
as may be requested by such person or persons. The Depositary shall execute
and deliver such Receipt at the Depositary's Office or such other offices, if
any, as the Depositary may designate. Delivery at other offices shall be at
the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations, or other
reclassifications affecting the Shares, or in the case of dividends or other
distributions of Shares, if any, there shall be deposited hereunder not more
than _________ shares of Shares.
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<PAGE> 9
Section 2.3. Redemption of Shares. Whenever the Company shall
elect to redeem Shares, it shall (unless otherwise agreed in writing with the
Depositary) give the Depositary not less than 40 nor more than 60 days' notice
of the date of such proposed redemption of Shares. On the date of such
redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Shares to be redeemed, the Depositary
shall redeem the Depositary Shares relating to such Shares. The Depositary
shall mail notice of such redemption and the proposed simultaneous redemption
of the number of Depositary Shares representing the Shares to be redeemed,
first-class postage prepaid, not less than 30 and not more than 45 days prior
to the date fixed for redemption of such Shares and Depositary Shares (the
"Redemption Date"), to the Record Holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price (which shall include all cumulative dividends to the
Redemption Date); (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; (v) that
dividends in respect of the Shares underlying the Depositary Shares to be
redeemed will cease to accumulate at the close of business on the business day
next preceding such Redemption Date; and (vi) the Record Date. In case less
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata as may be
determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
Shares to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph), all dividends in respect of the Shares so called
for redemption shall cease to accumulate, the Depositary Shares being redeemed
from such proceeds shall be deemed no longer to be outstanding, all rights of
the holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to [specify fraction] of the redemption price per share paid in respect of the
Shares plus all money and other property, if any, underlying such Depositary
Shares, including all amounts paid by the Company in respect of dividends which
on the Redemption Date have accumulated on the Shares to be so redeemed and
have not therefore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
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<PAGE> 10
Section 2.4. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Receipts upon any surrender thereof
by the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
Section 2.5. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Shares. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
Shares may withdraw such Shares and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate
for such withdrawals. Thereafter, without unreasonable delay, the Depositary
shall deliver to such holder or to the person or persons designated by such
holder as hereinafter provided, the number of whole Shares and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole Shares will not thereafter be
entitled to deposit such Shares hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole Shares to be
so withdrawn, the Depositary shall at the same time, in addition to such number
of Shares and such money and other property, if any, to be so withdrawn,
deliver to such holder, or (subject to Section 2.3) upon such holder's order, a
new Receipt evidencing such excess number of Depositary Shares. Delivery of
the Shares and money and other property, if any, being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Shares and the money and other property, if any, being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Shares,
such holder shall execute and deliver to the Depositary a written order so
directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such Shares be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Shares and the money and other property, if any,
represented by
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<PAGE> 11
Receipts surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Receipt or Receipts and for the account of the holder
thereof, such delivery may be made at such other place as may be designated by
such holder.
Section 2.6. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Shares may be suspended, the
registration of transfer of Receipts may be refused and the registration of
transfer, surrender or exchange of outstanding Receipts may be suspended (i)
during any period when the register of shareholders of the Company is closed or
(ii) if any such action is deemed necessary or advisable by the Depositary, any
of the Depositary's agents or the Company at any time or from time to time
because of the requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
Section 2.7. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and
of his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
Section 2.8. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, any cancelled receipts held by the Depositary shall be delivered to
the Company or disposed of as directed by the Company.
ARTICLE III.
Certain Obligations of the Holders
of Receipts and the Company
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Section 3.1. Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the
Company may reasonably deemed necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Receipt or any withdrawal of Shares and all money or other
property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or all or any part of
the Shares or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.3. Warranty as to Shares. The Company hereby represents
and warrants that the Shares, when issued, will be validly issued, fully paid
and nonassessable. Such representation and warranty shall survive the deposit
of the Shares and the issuance of Receipts.
ARTICLE IV.
The Deposited Securities; Notices
Section 4.1. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution with respect to Shares,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to Record
Holders of Receipts on the record date fixed pursuant to Section 4.4 such
amounts of such dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Shares an amount on
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. The Depositary
shall distribute or make available for distribution, as the case may be, only
such amount, however, as can be distributed without attributing to any holder
of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
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Section 4.2. Distributions Other than Cash. Whenever the
Depositary shall receive any distribution other than cash with respect to
Shares, the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
Record Holders of Receipts on the record date fixed pursuant to Section 4.4
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such Record Holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount on account of taxes) the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.1 and
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to Record Holders of Receipts as provided by Section 4.1 in the
case of a distribution received in cash.
Section 4.3. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names Shares are recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary
to the Record Holders of Receipts in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such
rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale, subject to Sections 3.1 and 3.2, shall be
distributed by the Depositary to the Record Holders of Receipts entitled
thereto as provided by Section 4.1 in the case of a distribution received in
cash.
If registration under the Securities Act of 1933, as amended, of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Receipts to be offered or sold the securities to which
such rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant
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<PAGE> 14
to such Act with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available to it to cause
such registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such
registration statement shall have become effective, or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
Section 4.4. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Shares are entitled to vote or of which holders of Shares are
entitled to notice or whenever the Depositary and the Company shall decide it
is appropriate, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Shares) for the determination of holders of Receipts who shall
be entitled hereunder to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who
shall be entitled to notice of such meeting or for any other appropriate
reasons.
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<PAGE> 15
Section 4.5. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Shares are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the Record Holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders may instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Shares underlying
their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to a
person designated by the Company) and a brief statement as to the manner in
which such instructions may be given. Upon the written request of Record
Holders of Receipts as of such record date, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole Shares
underlying the Depositary Shares evidenced by all Receipts as to which any
particular voting instructions are received. The Company hereby agrees to take
all action which may be deemed necessary by the Depositary in order to enable
the Depositary to vote such Shares or cause such Shares to be voted. In the
absence of specific instructions from a Record Holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to such Shares unless directed to the contrary by
the holders of all the Receipts) to the extent of the Shares representing the
Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Shares, or
upon any recapitalization, reorganization, merger or consolidation or similar
transaction or the sale of all or substantially all the Company's assets
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments [as are certified by the Company] in (a)
the fraction of an interest in one Share underlying one Depositary Share and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a Share, in each case as may be necessary fully to reflect the effects
of such change in par or stated value, split-up, combination or other
reclassification of Shares, or of such recapitalization, reorganization,
merger, or consolidation or sale and (ii) treat any securities which shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Shares as new deposited securities so received in exchange for or upon
conversion or in respect of such Shares. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
Section 4.7. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports
and communications received from the Company which are received by the
Depositary as the holder of Stock.
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<PAGE> 16
Section 4.8. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary
or Registrar, as the case may be.
ARTICLE V.
The Depositary, the Depositary's Agents, the Registrar and Company
Section 5.1. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the Record Holders of
Receipts; provided, however, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby.
If the Receipts or the Depositary Shares evidenced thereby or the
Shares underlying such Depositary Shares shall be listed on the New York Stock
Exchange, Inc., the Depositary shall, with the approval of the Company, appoint
a Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares in accordance with the requirements of such Exchange. Such
Registrar (which may be the Depositary if so permitted by the requirements of
such Exchange) may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company. If the
Receipts, such Depositary Shares or such Shares are listed on one or more other
stock exchanges, the Depositary will, at the request of the Company, arrange
such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Shares
as may be required by the law or applicable stock exchange regulation.
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<PAGE> 17
Section 5.2. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Company's Articles of Incorporation
(including the Articles of Amendment) or by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary,
the Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from, or subjected to any penalty on account of, doing or performing
any act or thing which the terms of this Deposit Agreement provide shall be
done or performed; nor shall the Depositary, any Depositary's Agent, any
Registrar or the company incur any liability to any holder of a Receipt (i) by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which the terms of this Deposit Agreement provide shall or
may be done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement except, in case
of any such exercise or failure to exercise discretion not caused as aforesaid,
if caused by the gross negligence or willful misconduct of the party charged
with such exercise of failure to exercise.
Section 5.3. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Shares, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Shares for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the Shares or for the manner or effect of any
such vote, as long as any such action or nonaction is in good faith. The
Depositary undertakes, and any Registrar shall be required
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<PAGE> 18
to undertake, to perform such duties and only such duties as are specifically
set forth in this Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Depositary or any Registrar. The
Depositary will indemnify the Company against any liability which may arise out
of acts performed or omitted by the Depositary or its agents due to its or
their negligence or bad faith. The Depositary, the Depositary's Agents, and
Registrar and the Company may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may also act as
transfer agent or registrar or any of the securities of the Company and its
affiliates.
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect only upon
the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$5,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent
jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the Depositary under this Deposit Agreement, and
such predecessor, upon payment of all sums due it and on the written request of
the Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all rights, title and interest in the Shares and
any moneys or property held hereunder to such successor and shall deliver to
such successor a list of the Record Holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appointment to the
Record Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof
shall not be required hereunder. Such successor Depositary may authenticate
the Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
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<PAGE> 19
Section 5.5. Corporate Notices and Reports. The Company agrees
that it will transmit to the Record Holders of Receipts, in each case at the
address furnished to it pursuant to Section 4.8, all notices and reports
(including without limitation financial statements) required by law, the rules
of any national securities exchange upon which the Shares, the Depositary
Shares or the Receipts are listed or by the Company's Articles of Incorporation
(including the Articles of Amendment) to be furnished by the Company to holders
of Shares. Such transmission will be at the Company's expense and the Company
will provide the Depositary, on or prior to the first date on which the Company
gives or mails such documents, with such number of copies of such documents as
the Depositary may reasonably request or as may be necessary to effect such
transmission. In addition, the Depositary will transmit to the Record Holders
of Receipts (at the Company's expense) such other documents as may be requested
by the Company.
Section 5.6. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence or bad faith on the respective parts of any such person or persons,
or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Receipts or the Shares pursuant to the provisions hereof.
Section 5.7. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Shares and the
initial issuance of the Depositary Shares, and redemption of the Shares at the
option of the Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges and expenses
to the Company once every three months or at such other intervals as the
Company and Depositary may agree.
Section 5.8. Retention of Depositary Documents. Subject to
Section 2.8, the Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by law but in no event less than two years unless the Company
requests that such papers be retained for a longer period
-15-
<PAGE> 20
or turned over to the Company or to a successor Depositary.
ARTICLE VI.
Amendment and Termination
Section 6.1. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment which shall materially and adversely alter the rights of the holders
of Receipts shall be effective unless such amendment shall have been approved
by the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of any outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby.
Section 6.2. Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares shall have been redeemed pursuant to Section 2.3 and all
accumulated and unpaid dividends on the Stock represented by Depositary Shares,
together with all other moneys and property, if any, to which holders of
Depositary Receipts are entitled under the Receipts and this Deposit Agreement,
shall have been paid or distributed as provided herein or provision therefor
duly made or (ii) there shall have been made a final distribution in respect of
the Shares in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and 5.7.
ARTICLE VII.
Miscellaneous
Section 7.1. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
Section 7.2. Exclusive Benefit of Parties. The Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to given any legal or equitable
right, remedy or claim to any other person whatsoever.
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<PAGE> 21
Section 7.3 Invalidity of Provisions. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if delivered by courier or sent by mail, addressed to
the Company at 4041 Essen Lane, Baton Rouge, Louisiana 70809, to the attention
of the Treasurer, or at any other address of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
delivered by courier or sent by mail, addressed to the Depositary at the
Depositary's Office, at __________________________, or at any other address of
which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if delivered by courier or sent by mail, addressed to such
record holder at the address of such record holder as it appears on the books
of the Depositary, or if such holder shall have filed with the Depositary a
written request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail shall be deemed to be effected at
the time when a duly addressed letter is deposited, postage prepaid, in a post
office letter box. The Depositary or the Company may, however, act upon any
facsimile or other electronic transmission message received by it from the
other or from any holder of a Receipt, notwithstanding that such facsimile or
other electronic transmission message shall subsequently be confirmed by letter
or courier delivery.
Section 7.5. Depositary's Agents. The Depositary may from time to
time appoint depositary's agents ("Depositary's Agents") to act in any respect
for the Depositary for the purposes of this Deposit Agreement and may at any
time appoint additional Depositary's Agent and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action.
Section 7.6. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
Section 7.7. Governing Law. This deposit agreement and the
receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of the
State of [New York].
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<PAGE> 22
Section 7.8. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
Section 7.9. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
-18-
<PAGE> 23
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof
Attested by: UNITED COMPANIES FINANCIAL
CORPORATION
____________________________________ By _________________________________
______________Secretary ____________Vice President
[Seal]
Attested by: ____________________________________
[DEPOSITARY]
____________________________________ By _________________________________
______________Secretary Authorized Officer
Title:_______________________________
[Seal]
-19-
<PAGE> 24
EXHIBIT A
UNITED COMPANIES FINANCIAL CORPORATION
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt
When Ready for Delivery
NUMBER ____ DEPOSITARY SHARES
CERTIFICATE FOR [NOT MORE THAN] _________ DEPOSITARY SHARES
TDR- ____
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK, SERIES ____ OF
UNITED COMPANIES FINANCIAL CORPORATION
[CUSIP ___________]
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR
THE STATE OF LOUISIANA CERTAIN DEFINITIONS
___________________________, as Depositary (the "Depositary"), hereby certifies
that ______________________________ is the registered owner of _______
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing
[specify fraction] of one share of Preferred Stock, Series ___ (the "Shares"),
of United Companies Financial Corporation, a Louisiana corporation (the
"Company"), on deposit with the Depositary, subject to the terms and entitled
to the benefits of the Deposit Agreement dated as of ___________, 19___ (the
"Deposit Agreement"), between the Company and the Depositary. By accepting
this Depositary Receipt the holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. [The Shares
and Depositary Shares are redeemable on and after ____________________, 19___,
at the option of the Company.] This Depositary Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by the manual signature of a duly authorized officer thereof.
Dated: Countersigned:
______________________ ______________________ [ ________________ ]
Depositary Registrar Transfer Agent
By: __________________ By: __________________ [ By: _____________ ]
Authorized Officer Authorized Officer Authorized Officer
-20-
<PAGE> 25
[FORM OF REVERSE OF RECEIPT]
UNITED COMPANIES FINANCIAL CORPORATION
UNITED COMPANIES FINANCIAL CORPORATION WILL, UPON REQUEST, FURNISH ANY
HOLDER OF A RECEIPT WITHOUT CHARGE A COPY OF THE DEPOSIT AGREEMENT AND A COPY
OF THE PORTIONS OF THE ARTICLES OF AMENDMENT OR RESOLUTIONS CONTAINING THE
DESIGNATIONS, PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF ALL SHARES AND
ANY CLASS OR SERIES THEREOF. [ANY SUCH REQUEST IS TO BE ADDRESSED TO THE
TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.]
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face
of this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ____Custodian_________
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties __________________________
(State)
JT TEM - as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list
For value received, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
_______________________________________________________________________________
(Please print or typewrite name and address; including postal zip code of
Assignee)
______________________________________________________________________Depositary
Shares represented by the within receipt, and do hereby irrevocably constitute
and appoint ____________________________________ Attorney to transfer the said
Depositary Shares on the books of the within-named Depositary with full power
of substitution in the premises.
Date: ________________ ___________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Receipt in every particular, without alteration
or enlargement or any change whatever.
Signature Guaranteed: ____________________________________________________
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<PAGE> 1
EXHIBIT 5.1
[STROOCK & STROOCK & LAVAN LLP LETTERHEAD]
February 19, 1997
United Companies Financial Corporation
4041 Essen Lane
Baton Rouge, Louisiana 70809
Re: United Companies Financial Corporation
Registration Statement on Form S-3
Gentlemen:
We have acted as special counsel for United Companies Financial Corporation, a
Louisiana corporation (the "Company"), in connection with the registration by
the Company of (A) up to $500,000,000 aggregate initial offering price of its
(i) unsecured debt securities (the "Debt Securities"), which may be either
senior or subordinated, (ii) shares of its preferred stock, par value $2.00 per
share (the "Preferred Stock") and (iii) shares of its common stock, par value
$2.00 per share, and associated preferred stock purchase rights (the "Common
Stock," and together with the Debt Securities and the Preferred Stock, the
"Securities"), and (B) an indeterminate amount of Debt Securities and an
indeterminate number of shares of Common Stock and Preferred Stock that may be
issued upon conversion or exchange of Securities as set forth in the
Registration Statement on Form S-3 (the "Registration Statement") that is being
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). We may also act as
special counsel to the Company in connection with the possible future
registration of up to $100,000,000 aggregate initial offering price of
Securities that may be registered pursuant to Rule 462(b) under the Securities
Act by means of an additional registration statement relating to the
Registration Statement (any such additional registration statement, the "462(b)
Registration Statement").
The Securities are to be issued, separately or together, in one or more series
and are to be sold from time to time as set forth in the Registration
Statement, the prospectus contained therein and any amendments or supplements
thereto and the 462(b) Registration Statement, if any.
The senior Debt Securities and the subordinated Debt Securities are to be
issued pursuant to separate Indentures (each, an "Indenture") between the
Company and The First National Bank of Chicago, as trustee, and The Bank of New
York, as trustee, respectively (each, a "Trustee"). Certain of the terms of
each series of Debt Securities may be set forth in a supplemental indenture to
an Indenture (each, a "Supplemental Indenture") between the Company and a
Trustee.
<PAGE> 2
United Companies Financial Corporation
February 19, 1997
Page 2
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not express any opinion herein
concerning any law other than the laws of the State of New York and the laws
of the United States of America.
We have examined copies of the restatement of the articles of incorporation, as
amended, and by-laws of the Company, forms of the Indentures and forms of the
Debt Securities included therein, as well as the Registration Statement and
forms of the agreements and other documents filed or to be filed as exhibits
thereto. We also have examined the original, reproduced or certified copies of
all such records of the Company, all such agreements, certificates of officers
and representatives of the Company and others, and such other documents, papers,
statutes and authorities as we deemed necessary to form the basis of the
opinions hereinafter expressed. In such examinations, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to original documents of copies of documents
supplied to us by the Company and others. As to certain matters of fact relevant
to the opinions hereafter expressed, we have relied upon statements and
certificates of officers of the Company and others.
Based upon the foregoing, we are of the opinion that when the issuance,
execution and delivery of each series of Debt Securities (including any Debt
Securities issued pursuant to the 462(b) Registration Statement, if any) has
been authorized by all necessary corporate action of the Company (subject to the
terms thereof being otherwise in compliance with applicable law at such time)
and otherwise in accordance with the provisions of the applicable Indenture and
related Supplemental Indenture, if any, and when such Debt Securities have been
duly executed, authenticated and delivered by the applicable Trustee and sold as
described in the Registration Statement, (a) such Debt Securities will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and similar laws relating to or affecting
creditors' rights generally and court decisions with respect thereto, except
that we express no opinion with respect to the application of equitable
principles in any proceeding, whether at law or in equity, and (b) the holders
of such Debt Securities will be entitled to the benefits provided by the
applicable Indenture and related Supplemental Indenture, if any.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the incorporation by reference of this opinion in
any 462(b) Registration Statement, to the reference to us in the prospectus and
each related prospectus supplement forming a part of the Registration
Statement, and to the filing of this opinion as an exhibit to any application
made by or on behalf of the Company in connection with the registration of the
Securities under the securities or blue sky laws of any state or jurisdiction.
In giving such permission, we do not admit hereby that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Stroock & Stroock & Lavan LLP
STROOCK & STROOCK & LAVAN LLP
<PAGE> 1
[KANTROW, SPAHT, WEAVER & BLITZER LETTERHEAD]
EXHIBIT 5.2
February 18, 1997
United Companies Financial Corporation
4041 Essen Lane
P.O. Box 1591
Baton Rouge, Louisiana 70821-1591
Re: United Companies Financial Corporation - Registration
Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to United Companies Financial Corporation (the
"Company") in connection with the preparation of the Registration Statement on
Form S-3 (the "Registration Statement") to be filed on February 19, 1997 with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), covering up to $500,000,000 aggregate initial offering
price of (i) the Company's unsecured debt securities, which may be either
senior or subordinated (the "Debt Securities"); (ii) the Company's $2.00 par
value preferred stock (the "Preferred Stock"); and (iii) the Company's $2.00
par value common stock, including associated rights to purchase the Company's
Series A Junior Participating Preferred Stock (together, the "Common Stock")
(the Debt Securities, the Preferred Stock and the Common Stock are collectively
referred to herein as the "Securities"). The Registration Statement also covers
an indeterminate amount of Debt Securities and shares of the Common Stock and
Preferred Stock as may be issued upon conversion or exchange of the Debt
Securities or the Preferred Stock, as the case may be. We may also act as
counsel to the Company in connection with the possible future registration of
up to $100,000,000 aggregate initial offering price of Securities that may be
registered pursuant to Rule 462(b) under the Act by means of an additional
registration statement relating to the Registration Statement (any such
additional registration statement, the "462(b) Registration Statement"). The
Securities are to be issued, separately or together, in one or more series and
are to be sold from time to time as set forth in the Registration Statement,
the prospectus contained therein and any amendment or supplements thereto and
the 462(b) Registration Statement, if any.
<PAGE> 2
United Companies Financial Corporation
February 18, 1997
Page 2
The senior Debt Securities and the subordinated Debt Securities are to
be issued pursuant to separate Indentures (each, an "Indenture") between the
Company and the First National Bank of Chicago, as trustee, and The Bank of New
York, as trustee, respectively (each, a "Trustee"). Certain of the terms of
each series of Debt Securities may be set forth in a supplemental indenture to
an Indenture (each, as "Supplemental Indenture") between the Company and a
Trustee.
We have examined the originals, or copies certified or otherwise
identified to our satisfaction, of the Restatement of the Articles of
Incorporation of the Company, its By-Laws, as amended, resolutions of its Board
of Directors, certificates of public officials, certificates of officers of the
Company or its subsidiaries and such other documents and corporate records as
we have deemed relevant and necessary as the basis for the opinion expressed
herein. In our examination of the aforementioned, we have assumed without
investigation the authenticity of the originals of such documents and the
conformity to originals of all documents submitted to us as copies, and the
authenticity of the originals of such latter documents, the genuineness of all
signatures, the legal capacity of natural persons and the accuracy of the
statement contained in such certificates. Based upon the foregoing and in
reliance thereon, and after examination of such matters of law as we deem
applicable or relevant hereto, and subject to the other qualifications below,
it is our opinion that:
(1) The Company is duly incorporated under the laws of the State of
Louisiana and is validly existing and in good standing under the
laws of that State;
(2) When (i) the Registration Statement (including the 462(b)
Registration Statement, if any) has become effective under the
Act and under all securities or blue sky laws of any state or
jurisdiction where registration or qualification is required;
(ii) the Underwriting Agreement - Basic Provisions and the
related Terms Agreement have been duly authorized, executed and
delivered by the Company; (iii) the issuance and sale of shares
of the Common Stock and the terms of the offering have been
duly authorized by the Company; (iv) the issuance and sale of
shares of the Common Stock are in conformity with the
Registration Statement (including the 462(b) Registration
Statement, if any) and the prospectus made a part thereof, as
supplemented from time to time, that may be filed or in effect
from time to time, the Louisiana Business Corporation Law as
then in effect (the "LBCL"), and the Restatement of the Articles
of Incorporation of the Company, and
<PAGE> 3
United Companies Financial Corporation
February 18, 1997
Page 3
do not violate any applicable law, order, rule or regulation or
any document, agreement or instrument then binding on the
Company; and (v) the form of certificates representing shares of
the Common Stock complies with the requirements of the LBCL, the
Common Stock, when issued against payment therefor, will be
validly issued, fully paid and non-assessable.
(3) When (i) the Registration Statement (including the 462(b)
Registration Statement, if any) has become effective under the
Act and under all state securities laws where registration or
qualification is required; (ii) the Underwriting Agreement -
Basic Provisions and the related Terms Agreement have been duly
authorized, executed and delivered by the Company; (iii) the
designation of one or more series of Preferred Stock and the
establishment of the relevant rights, preferences, limitations
and qualifications of such series has been duly authorized by the
Company; (iv) the issuance and sale of shares of the Preferred
Stock and the terms of the offering have been duly authorized by
the Company; (v) the issuance and sale of shares of the Preferred
Stock are in conformity with the Registration Statement
(including the 462(b) Registration Statement, if any) and the
prospectus made a part thereof, as supplemented from time to
time, that may be filed or in effect from time to time, the LBCL,
and the Restatement of the Articles of Incorporation of the
Company, and do not violate any applicable law, order, rule or
regulation or any document, agreement or instrument then binding
on the Company; and (vi) the form of certificates representing
shares of the Preferred Stock complies with the requirements of
the LBCL, the Preferred Stock, when issued against payment
therefor, will be validly issued, fully paid and non-assessable.
(4) If any Debt Securities or shares of Preferred Stock to be issued
are convertible or exchangeable into shares of Preferred Stock or
Common Stock, as the case may be, when (i) the Registration
Statement (including the 462(b) Registration Statement, if any)
has become effective under the Act and under all state securities
laws where registration or qualification is required; (ii) the
Debt Securities or shares of Preferred Stock have been exchanged
or converted into shares of Preferred Stock or Common Stock, as
the
<PAGE> 4
United Companies Financial Corporation
February 18, 1997
Page 4
case may be, pursuant to due authorization of the Company's Board of
Directors; (iii) the exchange or conversion of the Debt Securities or
shares of Preferred Stock into shares of Preferred Stock or Common
Stock, as the case may be, complies in all respects with the terms of
the Debt Securities or shares of Preferred Stock, the shares of
Preferred Stock or Common Stock, as the case may be, when issued upon
exchange or conversion of Debt Securities or Preferred Stock, as the
case may be, will be validly issued, fully paid and non-assessable.
We hereby expressly consent to the reference to our firm in the prospectus
and each related prospectus supplement forming a part of the Registration
Statement, to the inclusion of this opinion as an exhibit to the Registration
Statement, to the incorporation by reference of this opinion in the 462(b)
Registration Statement, if any, and to the filing of this opinion with any
appropriate governmental agency.
Very truly yours,
KANTROW, SPAHT, WEAVER & BLITZER
(A PROFESSIONAL LAW CORPORATION)
/s/ Kantrow, Spaht, Weaver & Blitzer
(A Professional Law Corporation)
<PAGE> 1
EXHIBIT 15.1
February 18, 1997
United Companies Financial Corporation
4041 Essen Lane
Baton Rouge, Louisiana
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
consolidated financial information of United Companies Financial Corporation and
subsidiaries for the periods ended March 31, 1996 and 1995, June 30, 1996 and
1995, and September 30, 1996 and 1995, as indicated in our reports dated May 10,
1996, August 12, 1996, and November 12, 1996, respectively; because we did not
perform an audit, we expressed no opinion on that information.
We are aware that the reports referred to above, which were included in
your Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June
30, 1996, and September 30, 1996, are being used in this Registration Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of United Companies Financial Corporation on Form S-3 of our report dated
February 29, 1996 (July 24, 1996 as to Notes 3, 4, 6 and 11) (which expresses an
unqualified opinion and includes an explanatory paragraph relating to the
Company's plan to dispose of United Companies Life Insurance Company, a
wholly-owned subsidiary of the Company), appearing in and incorporated by
reference in the Annual Report on Form 10-K/A-3 of United Companies Financial
Corporation for the year ended December 31, 1995, and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Baton Rouge, Louisiana
February 18, 1997
<PAGE> 1
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) _____
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
___________________________________
UNITED COMPANIES FINANCIAL CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
LOUISIANA 71-0430414
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
4041 ESSEN LANE
BATON ROUGE, LOUISIANA 70809
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
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.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Chicago and the State of Illinois, on this 3rd day of February, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 3, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between United
Companies Financial Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400 (-
Dollar Amounts in ------------ --------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . 0081 4,041,784 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell . . . . . . . . 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . 2125 22,417,107 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases) . . . . . 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding . . . 2155 626,690 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . 2143 310,246 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . 2170 49,956,726 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
---------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . RCON 6631 9,726,9871 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase . . . . RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . RCON 2840 14,120 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year . . . . RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding . RCFD 2920 626,690 18.
19. Subordinated notes and debentures . . . . . . . . . . . . RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20) . . . . . RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves . . . . . . . . RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments . . . RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27) . . . . RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external
Number
auditors as of any date during 1995 . . . . . . . . . . . . . . . . . RCFD 6724 . . . . . . . . . N/A M.1.
</TABLE>
<TABLE>
<S> <C> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
UNITED COMPANIES FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
Louisiana 71-0430414
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
4041 Essen Lane
Baton Rouge, Louisiana 70809
(Address of principal executive offices) (Zip code)
---------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
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.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, 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 5th day of February, 1997.
THE BANK OF NEW YORK
By: /s/ BYRON MERINO
-------------------------------
Name: Byron Merino
Title: Assistant Treasurer
-4-
<PAGE> 5
EXHIBIT 7
- --------------------------------------------------------------------------------
CONSOLIDATED REPORT OF CONDITION OF
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a
member of the Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,404,522
Interest-bearing balances .......... 732,833
Securities:
Held-to-maturity securities ........ 789,964
Available-for-sale securities ...... 2,005,509
Federal funds sold in domestic offices
of the bank:
Federal funds sold ................... 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,728,602
LESS: Allowance for loan and
lease losses ..............584,525
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 28,143,648
Assets held in trading accounts ...... 1,004,242
Premises and fixed assets (including
capitalized leases) ................ 605,668
Other real estate owned .............. 41,238
Investments in unconsolidated
subsidiaries and associated
companies .......................... 205,031
Customers' liability to this bank on
acceptances outstanding ............ 949,154
Intangible assets .................... 490,524
Other assets ......................... 1,305,839
-----------
Total assets ......................... $44,043,010
===========
LIABILITIES
Deposits:
In domestic offices ................ $20,441,318
Noninterest-bearing .......8,158,472
Interest-bearing .........12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,710,903
Noninterest-bearing ..........46,182
Interest-bearing .........11,664,721
Federal funds purchased in
domestic offices of the
bank:
Federal funds purchased ............ 1,565,288
Demand notes issued to the U.S.
Treasury ........................... 293,186
Trading liabilities .................. 826,856
Other borrowed money:
With original maturity of one year
or less .......................... 2,103,443
With original maturity of more than
one year ......................... 20,766
Bank's liability on acceptances exe-
cuted and outstanding .............. 951,116
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,522,884
-----------
Total liabilities .................... 40,456,160
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,129,376
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 2,073)
Cumulative foreign currency transla-
tion adjustments .................. ( 8,403)
-----------
Total equity capital ................ 3,586,850
-----------
Total liabilities and equity
capital ........................... $44,043,010
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
