<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 18, 1998
REGISTRATION NO. 333-41329
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INMC MORTGAGE HOLDINGS, INC.
(DBA INDYMAC MORTGAGE HOLDINGS, INC.)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-3983415
(I.R.S. EMPLOYER IDENTIFICATION
(STATE OR OTHER JURISDICTION OF NUMBER)
INCORPORATION OR ORGANIZATION)
155 NORTH LAKE AVENUE
PASADENA, CALIFORNIA 91101
(800) 669-2300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MICHAEL W. PERRY
155 NORTH LAKE AVENUE
PASADENA, CALIFORNIA 91101
(800) 669-2300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF PROCESS)
---------------
COPY TO:
EDWARD J. FINE, ESQ.
BROWN & WOOD LLP
ONE WORLD TRADE CENTER
NEW YORK, NEW YORK 10048
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
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, 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. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER UNIT(1)(2) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Debt Securities(3)......
Preferred Stock(4)......
Depositary Shares
representing Preferred
Stock(5)................
Common Stock, par value
$.01 per share(6)....... $500,000,000 (7) $500,000,000 (8)
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</TABLE>
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(Footnotes on next page)
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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 THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
(Footnotes continued from previous page)
(1) In U.S. Dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(2) Estimated solely for purposes of calculating the registration fee. No
separate consideration will be received for shares of Common Stock that
are issued upon conversion of Debt Securities or Preferred Stock
registered hereunder. The aggregate maximum public offering price of all
Offered Securities issued pursuant to this Registration Statement will not
exceed $500,000,000.
(3) Such indeterminate amount of Debt Securities as may from time to time be
issued at indeterminate prices or issuable upon conversion of other Debt
Securities or Preferred Stock registered hereunder.
(4) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued in Series at indeterminate prices or issuable upon
conversion of other Series of Preferred Stock or of Debt Securities
registered hereunder.
(5) To be represented by Depositary Receipts, each representing an interest in
a share or a specified portion of a share of Preferred Stock.
(6) Such indeterminate number of shares of Common Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion of Debt
Securities or Preferred Stock, or both, registered hereunder. Shares of
Common Stock may be issued from time to time in one or more classes or
series.
(7) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(8) The fee of $147,500, calculated pursuant to Rule 457(o) of the rules and
regulations under the Securities Act of 1933, as amended was paid with the
previous filing of Registration No. 333-41329 on December 2, 1997.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 18, 1998
PROSPECTUS
INMC MORTGAGE HOLDINGS, INC.
$500,000,000
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES, AND COMMON STOCK
INMC Mortgage Holdings, Inc. (dba IndyMac Mortgage Holdings, Inc.) ("IndyMac
REIT") may from time to time offer in one or more classes or series (i) its
unsecured senior debt securities (the "Debt Securities"), (ii) shares of its
preferred stock, par value $.01 per share (the "Preferred Stock"), (iii)
depositary shares representing Preferred Stock (the "Depositary Shares"), or
(iv) shares of its common stock, par value $.01 per share (the "Common
Stock"), with an aggregate public offering price of up to $500,000,000 on
terms to be determined at the time of offering. The Debt Securities, Preferred
Stock, Depositary Shares, and Common Stock (collectively, the "Offered
Securities") may be offered separately, together, or as units, in separate
classes or series in amounts, at prices, and on terms to be set forth in a
supplement to this Prospectus (each, a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Debt
Securities, the specific title, aggregate principal amount, currency of
denomination and payment, form (which may be registered or bearer, or
certificated or global), authorized denominations, maturity, rate (or manner
of calculation thereof) and time of payment of interest, terms for redemption
at the option of IndyMac REIT or repayment at the option of the Holder, terms
for sinking fund payments, terms for conversion into Common Stock or Preferred
Stock, and any initial public offering price; (ii) in the case of Preferred
Stock, the specific title and stated value, any dividend, liquidation,
redemption, conversion, voting, and other rights, and any initial public
offering price; (iii) in the case of Depositary Shares, the fractional share
of Preferred Stock represented by each Depositary Share; and (iv) in the case
of Common Stock, any initial public offering price. In addition, any specific
terms may include limitations on direct or beneficial ownership and
restrictions on transfer of the Offered Securities, in each case as may be
appropriate to preserve the status of IndyMac REIT as a real estate investment
trust ("REIT") for federal income tax purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered
Securities covered by the Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by IndyMac REIT, or to or through underwriters or dealers.
If any agents or underwriters are involved in the sale of any of the Offered
Securities, their names, and any applicable purchase price, fee, commission,
or discount arrangement between or among them, will be set forth, or will be
calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Offered Securities may be sold
without delivery of the applicable Prospectus Supplement describing the method
and terms of the offering of those Offered Securities.
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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.
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The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
IndyMac REIT is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). The Registration
Statement, the exhibits and schedules forming a part thereof, and the reports,
proxy statements, and other information filed by IndyMac REIT with the
Commission in accordance with the Exchange Act can be inspected and copied at
the Commission's Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices of the Commission: Seven
World Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of that information can be
obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a Web site at http://www.sec.gov containing reports, proxy, and
information statements and other information regarding registrants, including
IndyMac REIT, that file electronically with the Commission. In addition,
IndyMac REIT's Common Stock is currently listed on the New York Stock Exchange
and similar information concerning IndyMac REIT may be inspected and copied at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
IndyMac REIT has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") (of which this Prospectus is a part) under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Offered Securities. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain portions of which
have been omitted as permitted by the rules and regulations of the Commission.
Statements contained in this Prospectus as to the contents of any contract or
other document are not necessarily complete, and in each instance reference is
made to the copy of the contract or other document filed as an exhibit to the
Registration Statement for a more complete description of the matter involved,
each such statement being qualified in all respects by reference to the
appropriate exhibits and schedules to the Registration Statement. For further
information regarding IndyMac REIT and the Offered Securities, reference is
made to the Registration Statement and its exhibits and schedules, which may
be obtained from the Commission at its principal office in Washington, D.C.
upon payment of the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by IndyMac REIT under the
Exchange Act with the Commission and are incorporated by reference in this
Prospectus:
a. Annual Report on Form 10-K for the year ended December 31, 1997;
b. Quarterly Report on Form 10-Q for the quarter ended March 31, 1998; and
c. The description of IndyMac REIT's Common Stock contained in IndyMac
REIT's Registration Statement on Form 8-A dated August 8, 1985,
including any amendment or report filed to update the description.
All documents filed by IndyMac REIT pursuant to Sections 13(a), 13(c), 14,
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities are
incorporated in this Prospectus and the applicable Prospectus Supplement by
this reference and are part of this Prospectus and the applicable Prospectus
Supplement from the date of filing those documents. The statements in this
Prospectus, in any Prospectus Supplement, and in any document incorporated by
reference in this Prospectus or any Prospectus Supplement are all made as of
the dates of their respective documents. Because facts or circumstances may
change over time, statements in any of these documents may be modified or
superseded by corresponding statements in any one or more other of these
documents having a more recent date. Whenever a statement in one of these
documents has subsequently been so modified or superseded, the controlling
statement for the purpose of this Prospectus and any Prospectus Supplement
will be the statement from the most recently
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dated of this Prospectus, any Prospectus Supplement, and any document
incorporated by reference in this Prospectus or any Prospectus Supplement. Any
statement so modified or superseded shall not, except as so modified or
superseded, constitute a part of this Prospectus or the applicable Prospectus
Supplement.
Copies of all documents that are incorporated by reference in this
Prospectus and the applicable Prospectus Supplement (not including the
exhibits to those documents, unless the exhibits are specifically incorporated
by reference in those documents) will be provided without charge to each
person, including any beneficial owner of the Offered Securities, to whom this
Prospectus and the applicable Prospectus Supplement are delivered, upon
written or oral request. Requests should be directed to IndyMac REIT, Investor
Relations, 155 North Lake Avenue, Pasadena, California 91101 (telephone
number: (800) 669-2300, extension 5019).
3
<PAGE>
THE COMPANY
IndyMac REIT was established in 1985 as a REIT. IndyMac REIT conducts a
diversified mortgage lending business, including purchasing and investing in a
portfolio of non-conforming and jumbo residential loans, sub-prime loans,
manufactured housing loans, mortgage-backed securities, and other mortgage-
related assets. Other IndyMac REIT operations include (a) Construction Lending
Corporation of America ("CLCA"), which offers single-family and commercial
construction loan programs for builders and developers, and (b) Warehouse
Lending Corporation of America, which provides various types of short-term
revolving financing to mortgage originators. A substantial portion of the
assets of IndyMac REIT may be pledged under various credit agreements between
IndyMac REIT and various lending institutions. See Note H to the consolidated
financial statements of IndyMac REIT for the year ended December 31, 1997,
which is incorporated by reference herein.
IndyMac REIT owns all the preferred stock, and 99% of the economic interest,
in IndyMac, Inc. ("IndyMac Operating"). IndyMac Operating is a taxable
corporation that is not consolidated with IndyMac REIT for financial reporting
or income tax purposes. IndyMac Operating was established in 1993 as a
nationwide, third-party lender and securitizer of residential prime and sub-
prime mortgage loans. Other IndyMac Operating operations include (i) IndyMac
Manufactured Housing Division, which purchases manufactured housing loans from
dealers and other originators, (ii) IndyMac Home Improvement Division, which
provides various types of home improvement financing to individuals and
purchases home improvement loans from dealers and other originators, (iii)
IndyMac Construction Lending Division, which offers consumer construction loan
programs for individuals who wish to construct their own residences, and also
offers single-family and tract construction loan programs for builders and
developers through brokers and other intermediaries, and (iv) LoanWorks, which
offers a full menu of residential loan products directly to consumers in
Southern California and to consumers through CLCA's builder relationships.
Unless the context otherwise requires, references to "IndyMac REIT" mean INMC
Mortgage Holdings, Inc. or INMC Mortgage Holdings, Inc. and each of its
consolidated subsidiaries, and references to the "Company" mean INMC Mortgage
Holdings, Inc., its consolidated subsidiaries and IndyMac, Inc.
On July 1, 1997, Countrywide Asset Management Corporation, which was the
manager of IndyMac REIT, merged with and into IndyMac REIT pursuant to an
Agreement and Plan of Merger approved by IndyMac REIT's stockholders. Upon
consummation of the merger, IndyMac REIT became a self-administered and self-
managed REIT.
In order to maintain its qualification as a REIT for federal income tax
purposes, IndyMac REIT is required to distribute at least 95% of its taxable
income each year. Historically, IndyMac REIT's distributions have exceeded,
and IndyMac REIT expects that its distributions will continue to exceed,
taxable income each year. A portion of such distributions may constitute a
return of capital. As a result of the foregoing, the consolidated net worth of
IndyMac REIT may decline.
Subject to stockholder approval, IndyMac REIT proposes to change its name to
IndyMac Mortgage Holdings, Inc. Stockholders have been asked to vote on the
name change proposal at IndyMac REIT's Annual Meeting of Stockholders on May
19, 1998.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, IndyMac
REIT intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include the financing of collateral
that is not eligible to be pledged under any of IndyMac REIT's credit or
repurchase agreement facilities.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture, as amended or
supplemented from time to time (the "Indenture"), between IndyMac REIT and
Chase Manhattan Bank and Trust Company, National Association, as Trustee (the
"Trustee"). The Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part and is available for inspection
at the corporate trust office of the Trustee at 101 California Street, Suite
2725, San Francisco, California 94111 or as described above under "Available
Information." The Indenture is subject to, and governed by, the Trust
Indenture Act of 1939, as amended (the "TIA"). The statements made in this
Prospectus relating to the Indenture and the Debt Securities to be issued
pursuant to the Indenture are summaries of certain provisions of the Indenture
and the Debt Securities and do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all provisions of the
Indenture and the Debt Securities. All section references appearing in this
Prospectus are to sections of the Indenture, and capitalized terms used but
not defined in this Prospectus shall have the respective meanings set forth in
the Indenture.
GENERAL
The Debt Securities will be direct, unsecured obligations of IndyMac REIT
and will rank equally with all other unsecured and unsubordinated indebtedness
of IndyMac REIT. The Indenture provides that the Debt Securities may be issued
without limit as to aggregate principal amount, in one or more series, in each
case as established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of IndyMac REIT or as established in one
or more indentures supplemental to the Indenture. All Debt Securities of one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders of the Debt
Securities of such series, for issuances of additional Debt Securities of such
series (Section 3.1).
The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect
to such series (Section 6.8). In the event that two or more persons are acting
as Trustee with respect to different series of Debt Securities, each such
Trustee shall be a Trustee of a trust under the Indenture separate and apart
from the trust administered by any other Trustee (Section 6.9), and, except as
otherwise indicated herein, any action described herein to be taken by the
Trustee may be taken by each such Trustee with respect to, and only with
respect to, the one or more series of Debt Securities for which it is Trustee
under the Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities;
(2) the aggregate principal amount of such Debt Securities and any limit
on such aggregate principal amount;
(3) if other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the
maturity thereof, or (if applicable) the portion of the principal amount of
such Debt Securities which is convertible into Common Stock or Preferred
Stock, or the method by which any such portion shall be determined;
(4) if convertible, in connection with the preservation of IndyMac REIT's
status as a REIT, any applicable limitations on the ownership or
transferability of the Common Stock or Preferred Stock into which such Debt
Securities are convertible;
(5) the date or dates, or the method for determining such date or dates,
on which the principal of such Debt Securities will be payable;
(6) the rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which such Debt Securities
will bear interest, if any;
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(7) the date or dates, or the method for determining such date or dates,
from which any interest will accrue, the Interest Payment Dates on which
any such interest will be payable, the Regular Record Dates for such
Interest Payment Dates, or the method by which any such Date shall be
determined, the Person to whom such interest shall be payable, and the
basis upon which interest shall be calculated if other than that of a 360-
day year of twelve 30-day months;
(8) the place or places where the principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable, such Debt
Securities may be surrendered for conversion or registration of transfer or
exchange, and notices or demands to or upon IndyMac REIT in respect of such
Debt Securities and the Indenture may be served;
(9) the period or periods within which, the price or prices at which, and
the terms and conditions upon which such Debt Securities may be redeemed,
as a whole or in part, at the option of IndyMac REIT, if IndyMac REIT is to
have such an option;
(10) the obligation, if any, of IndyMac REIT to redeem, repay, or
purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, and the terms and conditions
upon which such Debt Securities will be redeemed, repaid, or purchased, as
a whole or in part, pursuant to such obligation;
(11) if other than U.S. dollars, the currency or currencies in which such
Debt Securities are denominated and payable, which may be units of two or
more foreign currencies or a composite currency or currencies, and the
terms and conditions relating thereto;
(12) whether the amount of payments of principal of (and premium, if any)
or interest, if any, on such Debt Securities may be determined with
reference to an index, formula, or other method (which index, formula, or
method may, but need not be, based on a currency, currencies, currency unit
or units, or composite currency or currencies) and the manner in which such
amounts shall be determined;
(13) any additions to, modifications of, or deletions from the terms of
such Debt Securities with respect to the Events of Default or covenants set
forth in the Indenture;
(14) whether such Debt Securities will be issued in certificated or book-
entry form or both;
(15) whether such Debt Securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the denominations
thereof and terms and conditions relating thereto;
(16) the applicability, if any, of the defeasance and covenant defeasance
provisions of Section 4.2 of the Indenture;
(17) the terms, if any, upon which such Debt Securities may be
convertible into Common Stock or Preferred Stock of IndyMac REIT and the
terms and conditions upon which such conversion will be effected,
including, without limitation, the initial conversion price or rate and the
conversion period;
(18) whether and under what circumstances IndyMac REIT will pay
Additional Amounts as contemplated in the Indenture on such Debt Securities
in respect of any tax, assessment, or governmental charge and, if so,
whether IndyMac REIT will have the option to redeem such Debt Securities in
lieu of making such payment; and
(19) any other terms of such Debt Securities (including, but not limited
to, any additional covenants of the Company applicable to such Debt
Securities) not inconsistent with the provisions of the Indenture (Section
3.1).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). If material or applicable, special
U.S. federal income tax, accounting, and other considerations applicable to
Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
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Subject to the limitations set forth under "--Merger, Consolidation, or
Sale," IndyMac REIT may, in the future, enter into certain transactions, such
as the sale of all or substantially all of its assets or the merger or
consolidation of IndyMac REIT, that would increase the amount of IndyMac
REIT's indebtedness or substantially reduce or eliminate IndyMac REIT's
assets, which may have an adverse effect on IndyMac REIT's ability to service
its indebtedness, including the Debt Securities. In addition, restrictions on
ownership and transfers of IndyMac REIT's capital stock are designed to
preserve its status as a REIT and, therefore, may act to prevent or hinder a
change of control. See "Restrictions on Ownership of Capital Stock." Reference
is made to the applicable Prospectus Supplement for information with respect
to any deletions from, modifications of, or additions to the Events of Default
that are described below, including any addition of provisions providing event
risk or similar protection, or for a description of certain covenants,
including any covenants which may affect IndyMac REIT's ability to service its
indebtedness.
DENOMINATIONS, INTEREST, REGISTRATION, AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the Debt
Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof (Section 3.2).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any), and interest on any series of Debt
Securities will be payable at the corporate trust office of the Trustee,
initially located at 101 California Street, Suite 2725, San Francisco,
California 94111, provided that, at the option of IndyMac REIT, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as it appears in the Security Register or by wire transfer of funds to
such Person at an account maintained within the United States (Sections 3.1,
3.5, 3.6, 3.7 and 10.2).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the person in whose name the Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of the Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of the Debt Security not
less than 10 days prior to the Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the Indenture.
Subject to certain limitations imposed upon Debt Securities issued in book-
entry form, the Debt Securities of any series will be exchangeable for other
Debt Securities of the same series and of a like aggregate principal amount
and tenor of different authorized denominations upon surrender of the Debt
Securities at the corporate trust office of the Trustee referred to above. In
addition, subject to certain limitations imposed upon Debt Securities issued
in book-entry form, the Debt Securities of any series may be surrendered for
conversion or registration of transfer or exchange thereof at the corporate
trust office of the Trustee referred to above. Every Debt Security surrendered
for conversion, registration of transfer, or exchange shall be duly endorsed
or accompanied by a written instrument of transfer. No service charge will be
made for any registration of transfer or exchange of any Debt Securities, but
IndyMac REIT may require payment of a sum sufficient to cover any tax or other
governmental charge and any other expenses payable in connection therewith
(Section 3.5). If the applicable Prospectus Supplement refers to any transfer
agent (in addition to the Trustee) initially designated by IndyMac REIT with
respect to any series of Debt Securities, IndyMac REIT may at any time rescind
the designation of that transfer agent or approve a change in the location
through which that transfer agent acts, except that IndyMac REIT will be
required to maintain a transfer agent in each place of payment for such
series. IndyMac REIT may at any time designate additional transfer agents with
respect to any series of Debt Securities (Section 10.2).
Neither IndyMac REIT nor the Trustee shall be required to (i) issue,
register the transfer of, or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close of
business on the day of mailing of the relevant notice of redemption; (ii)
register the transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Debt Security
being redeemed in part; or (iii) issue,
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register the transfer of, or exchange any Debt Security that has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of the Debt Security not to be so repaid (Section 3.5).
MERGER, CONSOLIDATION, OR SALE
IndyMac REIT may consolidate with, or sell, lease, or convey all or
substantially all of its assets to, or merge with or into, any other
corporation, provided that (a) either IndyMac REIT shall be the continuing
corporation, or the successor corporation (if other than IndyMac REIT) formed
by or resulting from any such consolidation or merger or which shall have
received the transfer of such assets, shall expressly assume the due and
punctual payment of the principal of (and premium, if any) and interest on all
of the Debt Securities and the performance of all obligations contained in the
Indenture and the Outstanding Debt Securities; (b) immediately after giving
effect to such transaction, no Event of Default under the Indenture, and no
event which, after notice or the lapse of time, or both, would become such an
Event of Default, shall have occurred and be continuing; and (c) an officer's
certificate and legal opinion covering such conditions shall be delivered to
the Trustee (Section 8.1).
CERTAIN COVENANTS
Existence. Except as permitted under "--Merger, Consolidation, or Sale,"
IndyMac REIT 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. However, IndyMac REIT shall not be required to
preserve any right or franchise if IndyMac REIT determines that the
preservation thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to the
Holders of the Debt Securities (Section 10.5).
Maintenance of Properties. IndyMac REIT will cause all of its properties
used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair, and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments, and improvements
thereof, all as in the judgment of IndyMac REIT may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times. However, IndyMac REIT and its Subsidiaries shall not
be prevented from selling or otherwise disposing of for value its properties
in the ordinary course of business (Section 10.8).
Payment of Taxes and Other Claims. IndyMac REIT will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments, and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits, or property of IndyMac REIT or any
Subsidiary, and (ii) all lawful claims for labor, materials, and supplies
which, if unpaid, might by law become a lien upon the property of IndyMac REIT
or any Subsidiary. However, IndyMac REIT shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge,
or claim whose amount, applicability, or validity is being contested in good
faith by appropriate proceedings (Section 10.9).
Additional Covenants. Reference is made to the applicable Prospectus
Supplement for information with respect to any additional covenants specific
to a particular series of Debt Securities.
EVENTS OF DEFAULT, NOTICE, AND WAIVER
The Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (a) default
for 30 days in the payment of any installment of interest on any Debt Security
of such series; (b) default in the payment of the principal of (or premium, if
any, on) any Debt Security of such series at its Maturity; (c) default in
making any sinking fund payment as required for any Debt Security of such
series; (d) default in the performance of any other covenant of IndyMac REIT
contained in the Indenture (other than a covenant added to the Indenture
solely for the benefit of a series of Debt Securities issued thereunder other
than such series), continued for 60 days after written notice as provided in
the Indenture; (e)
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default in the payment of an aggregate principal amount exceeding $10,000,000
of any evidence of indebtedness of IndyMac REIT or any Restricted Subsidiary
or any mortgage, indenture, or other instrument under which such indebtedness
is issued or by which such indebtedness is secured, such default having
occurred after the expiration of any applicable grace period and having
resulted in the acceleration of the maturity of such indebtedness, but only if
such indebtedness is not discharged or such acceleration is not rescinded or
annulled; (f) certain events of bankruptcy, insolvency, or reorganization, or
court appointment of a receiver, liquidator, or trustee of IndyMac REIT or any
Restricted Subsidiary or either of its property; and (g) any other Event of
Default provided with respect to a particular series of Debt Securities
(Section 5.1).
If an Event of Default under the Indenture with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Debt Securities of that series may declare the principal
amount (or, if the Debt Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may
be specified in the terms thereof) of all of the Debt Securities of that
series to be due and payable immediately by written notice thereof to IndyMac
REIT (and to the Trustee if given by the Holders). However, at any time after
such a declaration of acceleration with respect to Debt Securities of such
series (or of all Debt Securities then Outstanding under the Indenture, as the
case may be) has been made, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the Holders of not less than a
majority in principal amount of Outstanding Debt Securities of such series (or
of all Debt Securities then Outstanding under the Indenture, as the case may
be) may rescind and annul such declaration and its consequences if (a) IndyMac
REIT shall have deposited with the Trustee all required payments of the
principal of (and premium, if any) and interest on the Debt Securities of such
series (or of all Debt Securities then Outstanding under the Indenture, as the
case may be), plus certain fees, expenses, disbursements, and advances of the
Trustee and (b) all Events of Default, other than the non-payment of
accelerated principal (or specified portion thereof), with respect to Debt
Securities of such series (or of all Debt Securities then Outstanding under
the Indenture, as the case may be) have been cured or waived as provided in
the Indenture (Section 5.2). The Indenture also provides that the Holders of
not less than a majority in principal amount of the Outstanding Debt
Securities of any series (or of all Debt Securities then Outstanding under the
Indenture, as the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such
series or (y) in respect of a covenant or provision contained in the Indenture
that cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security affected thereby (Section 5.13).
The Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the Indenture. However, the Trustee may
withhold notice to the Holders of any series of Debt Securities of any default
with respect to such series (except a default 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 in respect of any Debt Security of
such series) if the Responsible Officers of the Trustee consider such
withholding to be in the interest of such Holders (Section 6.2).
The Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the
Indenture or for any remedy thereunder, except in the case of failure of the
Trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of
such series, as well as an offer of indemnity reasonably satisfactory to the
Trustee (Section 5.7). This provision will not prevent, however, any Holder of
Debt Securities from instituting suit for the enforcement of payment of the
principal of (and premium, if any) and interest on such Debt Securities at the
respective due dates thereof (Section 5.8).
Subject to provisions in the Indenture relating to its duties in case of
default, the Trustee is under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any Holders of any
series of Debt Securities then Outstanding under the Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
(Section 6.1). The Holders of not less than a majority in principal
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amount of the Outstanding Debt Securities of any series (or of all Debt
Securities then Outstanding under the Indenture, as the case may be) shall
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or of exercising any trust
or power conferred upon the Trustee. However, the Trustee may refuse to follow
any direction which is in conflict with any law or the Indenture or which may
be unduly prejudicial to the Holders of Debt Securities of such series not
joining therein (Section 5.12).
Within 120 days after the close of each fiscal year, IndyMac REIT must
deliver to the Trustee a certificate, signed by one of several specified
officers, stating whether or not such officer has knowledge of any default
under the Indenture and, if so, specifying each such default and the nature
and status thereof (Section 10.7).
MODIFICATION
Modifications and amendments of the Indenture and Debt Securities may be
made only with the consent of the Holders of not less than a majority in
principal amount of all Outstanding Debt Securities that are affected by such
modification or amendment. However, no such modification or amendment may,
without the consent of the Holder of each such Debt Security affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of
interest (or premium, if any) on, any such Debt Security; (b) reduce the
principal amount of, or the rate or amount of interest on, or any premium
payable on redemption of, any such Debt Security, or reduce the amount of
principal of an Original Issue Discount Security that would be due and payable
upon declaration of acceleration of the maturity thereof or would be provable
in bankruptcy, or adversely affect any right of repayment of the Holder of any
such Debt Security; (c) change the Place of Payment, or the coin or currency,
for payment of principal of (or premium, if any) or interest on any such Debt
Security; (d) impair the right to institute suit for the enforcement of any
payment on or with respect to any such Debt Security; (e) reduce the above-
stated percentage of Outstanding Debt Securities of any series necessary to
modify or amend the Indenture, to waive compliance with certain provisions
thereof or certain defaults and consequences thereunder, or to reduce the
quorum or voting requirements set forth in the Indenture; or (f) modify any of
the foregoing provisions or any of the provisions relating to the waiver of
certain past defaults or certain covenants, except to increase the required
percentage to effect such action or to provide that certain other provisions
may not be modified or waived without the consent of the Holder of such Debt
Security (Section 9.2).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities of any series will have the right to waive compliance by
IndyMac REIT with certain covenants set forth in the Indenture or certain
covenants applicable to such series as may be set forth in the related
supplemental Indenture, Board Resolutions or Officers' Certificate (Section
10.6).
Modifications and amendments of the Indenture may be made by IndyMac REIT
and the Trustee without the consent of any Holder of Debt Securities for any
of the following purposes: (i) to evidence the succession of another Person to
IndyMac REIT as obligor under the Indenture; (ii) to add to the covenants of
IndyMac REIT for the benefit of the Holders of all or any series of Debt
Securities or to surrender any right or power conferred upon IndyMac REIT in
the Indenture; (iii) to add or change any provisions of the Indenture to
facilitate the issuance of, or to liberalize certain terms of, Debt Securities
in bearer form, or to permit or facilitate the issuance of Debt Securities in
uncertificated form, provided that such action shall not adversely affect the
interests of the Holders of the Debt Securities of any series in any material
respect; (iv) to establish the form or terms of Debt Securities of any series,
including the provisions and procedures, if applicable, for the conversion of
such Debt Securities into Common Stock of IndyMac REIT; (v) to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee;
(vi) to cure any ambiguity, defect, or inconsistency in the Indenture,
provided that such action shall not adversely affect the interests of Holders
of Debt Securities of any series in any material respect; (vii) to add Events
of Default for the benefit of the Holders of all or any series of Debt
Securities; (viii) to supplement any of the provisions of the Indenture to the
extent necessary to permit or facilitate defeasance and discharge of any
series of such Debt Securities, provided that such action shall not adversely
affect the interests of the Holders of the Debt Securities
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of any series in any material respect; (ix) to secure the Debt Securities; or
(x) to amend or supplement any provisions of the Indenture, provided that any
such amendment or supplement shall not materially adversely affect the
interests of the Holders of any Debt Securities Outstanding (Section 9.1).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities of a series have
given any request, demand, authorization, direction, notice, consent, or
waiver thereunder or whether a quorum is present at a meeting of Holders of
Debt Securities, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon declaration of acceleration of the maturity thereof, (ii)
the principal amount of an Indexed Security that shall be deemed outstanding
shall be the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Indexed Security
pursuant to Section 3.1 of the Indenture, (iii) the principal amount of a Debt
Security denominated in a Foreign Currency that shall be deemed outstanding
shall be the U.S. dollar equivalent, determined on the issue date for such
Debt Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the issue date of such Debt
Security of the amount determined as provided in (i) above), and (iv) Debt
Securities owned by IndyMac REIT or any other obligor upon the Debt Securities
or any Affiliate of IndyMac REIT or of such other obligor shall be disregarded
(Section 1.1).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series (Section 15.1). A meeting may be called at any
time by the Trustee, and also, upon request, by IndyMac REIT or the Holders of
at least 10% in principal amount of the Outstanding Debt Securities of such
series, in any such case upon notice given as provided in the Indenture
(Section 15.2). Except for any consent that must be given by the Holder of
each Debt Security affected by certain modifications and amendments of the
Indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series. However, except as referred to above, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver, or other action that may be made, given, or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or adjourned meeting duly reconvened at which a quorum is present
by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Debt Securities of that series. Any
resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the Indenture will be
binding on all Holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
Persons holding or representing a majority in principal amount of the
Outstanding Debt Securities of a series. However, if any action is to be taken
at such meeting with respect to a consent or waiver which may be given by the
Holders of not less than a specified percentage in principal amount of the
Outstanding Debt Securities of a series, the Persons holding or representing
such specified percentage in principal amount of the Outstanding Debt
Securities of such series will constitute a quorum (Section 15.4).
DISCHARGE, DEFEASANCE, AND COVENANT DEFEASANCE
IndyMac REIT may discharge certain obligations to Holders of any series of
Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due
and payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in
which such Debt Securities are payable in an amount sufficient to pay the
entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be (Section 4.1).
The Indenture provides that, if the provisions of Section 4.2 are made
applicable to the Debt Securities of or within any series pursuant to Section
3.1 of the Indenture, IndyMac REIT may elect either (a) to defease and
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be discharged from any and all obligations with respect to such Debt
Securities (except for the obligation to pay Additional Amounts, if any, upon
the occurrence of certain events of tax, assessment, or governmental charge
with respect to payments on such Debt Securities and the obligations to
register the transfer or exchange of such Debt Securities, to replace
temporary or mutilated, destroyed, lost, or stolen Debt Securities, to
maintain an office or agency in respect of such Debt Securities and to hold
moneys for payment in trust) ("defeasance") (Section 4.2) or (b) to be
released from its obligations with respect to such Debt Securities under
Sections 10.5, 10.8 and 10.9 or, if provided pursuant to Section 3.1 of the
Indenture, its obligations with respect to any other covenant, and any
omission to comply with such obligations shall not constitute a default or an
Event of Default with respect to such Debt Securities ("covenant defeasance")
(Section 4.2), in either case upon the irrevocable deposit by IndyMac REIT
with the Trustee, in trust, of an amount, in such currency or currencies,
currency unit or units, or composite currency or currencies in which such Debt
Securities are payable at Stated Maturity, or Government Obligations (as
defined below), or both, applicable to such Debt Securities which through the
scheduled payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal of (and
premium, if any) and interest on such Debt Securities, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates
therefor.
Such a trust may only be established if, among other things, IndyMac REIT
has delivered to the Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the Holders of such Debt Securities will not
recognize income, gain, or loss for U.S. federal income tax purposes as a
result of such defeasance or covenant defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner, and at the same
times as would have been the case if such defeasance or covenant defeasance
had not occurred, and such Opinion of Counsel, in the case of defeasance, must
refer to and be based upon a ruling of the Internal Revenue Service or a
change in applicable United States federal income tax law occurring after the
date of the Indenture (Section 4.2).
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which
issued the Foreign Currency in which the Debt Securities of such series are
payable, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other
government, which, in either case, 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
Government Obligation or a specific payment of interest on or principal of any
such 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 Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt (Section 1.1).
Unless otherwise provided in the applicable Prospectus Supplement, if after
IndyMac REIT has deposited funds or Government Obligations or both to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 3.1 of the Indenture or the terms of such Debt
Security to receive payment in a currency, currency unit, or composite
currency other than that in which such deposit has been made in respect of
such Debt Security, or (b) a Conversion Event (as defined below) occurs in
respect of the currency, currency unit, or composite currency in which such
deposit has been made, the indebtedness represented by such Debt Security
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest on
such Debt Security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such Debt Security into the
currency, currency unit or composite currency in which such Debt Security
becomes payable as a result of such election or such cessation of usage based
on the applicable market exchange rate (Section 4.2). "Conversion Event" means
the cessation of use of (i) a currency, currency unit, or composite currency
both by the government of the country that issued such currency and for
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the settlement of transactions by a central bank or other public institutions
of or within the international banking community, (ii) the ECU 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
or composite currency other than the ECU for the purposes for which it was
established. Unless otherwise provided in the applicable Prospectus
Supplement, all payments of principal of (and premium, if any) and interest on
any Debt Security that is payable in a Foreign Currency that ceases to be used
by its government of issuance shall be made in U.S. dollars (Section 1.1).
In the event IndyMac REIT effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default other than the Event of Default
described in clause (d) under "--Events of Default, Notice, and Waiver" with
respect to Sections 10.5, 10.8 and 10.9 and certain other covenants as may be
set forth in the related supplemental Indenture, Board Resolutions, or
Officers' Certificate (which provisions would no longer be applicable to such
Debt Securities) or described in clause (g) under "--Events of Default,
Notice, and Waiver" with respect to any other covenant as to which there has
been covenant defeasance, the amount in such currency, currency unit, or
composite currency in which such Debt Securities are payable, and Government
Obligations on deposit with the Trustee, will be sufficient to pay amounts due
on such Debt Securities at the time of their Stated Maturity but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, IndyMac REIT would
remain liable to make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into other Debt Securities, Common Stock, or Preferred Stock will
be set forth in the applicable Prospectus Supplement relating thereto. Such
terms will include whether such Debt Securities are convertible into other
Debt Securities, Common Stock, or Preferred Stock, the conversion price (or
manner of calculation thereof), the conversion period, provisions as to
whether conversion will be at the option of the Holders or IndyMac REIT, the
events requiring an adjustment of the conversion price and provisions
affecting conversion in the event of the redemption of such Debt Securities.
RESTRICTIONS ON OWNERSHIP
For IndyMac REIT to qualify as a REIT under the Internal Revenue Code of
1986, as amended (the "Code"), not more than 50% in value of its outstanding
capital stock may be owned, directly or indirectly, by five or fewer
individuals (as defined in the Code to include certain entities) during the
last half of a taxable year. In order that IndyMac REIT may meet these
requirements at all times, the Certificate of Incorporation prohibits any
person or group of persons from acquiring or holding, directly or indirectly,
ownership of capital stock in excess of 9.8% of the outstanding shares. See
"Restrictions on Ownership of Capital Stock." These provisions of the
Certificate of Incorporation and the Code will be applicable to any Common
Stock and any series of Preferred Stock that the Debt Securities may be
convertible into. Therefore, certain Holders of the Debt Securities may be
prevented from exercising any conversion rights they would otherwise have due
to the restrictions on ownership and transfer of the Common Stock and any
series of Preferred Stock.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the applicable Prospectus Supplement relating to such series. Global
Securities may be issued in either registered or bearer form and in either
temporary or permanent form. The specific terms of the depositary arrangement
with respect to a series of Debt Securities will be described in the
applicable Prospectus Supplement relating to such series.
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DESCRIPTION OF PREFERRED STOCK
GENERAL
The Board of Directors of IndyMAC REIT has recommended that IndyMac REIT's
stockholders vote to amend IndyMac REIT's Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), to authorize the creation of 10
million shares of preferred stock, $.01 par value per share. The proposal is
scheduled to be voted on at IndyMac REIT's Annual Meeting of Stockholders on
May 19, 1998. Subject to stockholder approval, IndyMac REIT will be authorized
to issue up to 10 million shares of Preferred Stock, none of which was
outstanding at the date of this Prospectus.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to, and qualified in their entirety by reference to, the
applicable provisions of the Certificate of Incorporation and Bylaws of
IndyMac REIT and any applicable articles supplementary to the Certificate of
Incorporation designating the terms of a series of Preferred Stock (a
"Designating Amendment").
TERMS
Subject to the limitations prescribed by Delaware law, the Certificate of
Incorporation, or any applicable stock exchange rules, the Preferred Stock is
issuable from time to time, in one or more series, with the designation,
powers, preferences, rights, and such other subjects or matters as may be
fixed by resolution of the Board of Directors or a duly authorized committee
of the Board of Directors without any further stockholder approval. The
designation, powers, preferences, and rights may include, but are not limited
to, the number of shares; dividend rights; voting rights; conversion
privileges; redemption privileges; sinking fund provisions; rights upon
liquidation, dissolution, or winding up of IndyMac REIT; and other rights,
preferences, and limitations. The Preferred Stock will, when issued, be fully
paid and nonassessable, and will not have, or be subject to, any preemptive or
similar rights.
Reference is made to the Prospectus Supplement relating to the specific
series of Preferred Stock for its specific terms, including:
(a) the number of shares constituting that series and the distinctive
designation of that series;
(b) the dividend rate on the shares of that series; whether dividends
shall be cumulative, and, if so, from which date or dates; and the relative
rights of priority, if any, on payment of dividends on shares of that
series;
(c) whether that series shall have voting rights, in addition to voting
rights provided by law, and, if so, the terms of the voting rights;
(d) whether that series shall have conversion privileges, and, if so, the
terms and conditions of any conversion, including provision for adjustment
of the conversion rate or conversion price in certain events as determined
by the Board of Directors;
(e) whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of any redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share
payable upon redemption, which amount may vary under different conditions
and at different redemption dates;
(f) whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of any
sinking fund;
(g) the rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution, or winding up of IndyMac REIT, and
the relative rights of priority, if any, of payment of shares of that
series;
(h) the procedures for any auction and remarketing, if any, for the
Preferred Stock;
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(i) any listing of the Preferred Stock on any securities exchange;
(j) whether shares of Preferred Stock will be represented by Depositary
Shares, and if so, the fractional share of Preferred Stock represented by
such Depositary Shares;
(k) any limitations on direct or beneficial ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status of
IndyMac REIT as a REIT; and
(l) any other relative rights, preferences, and limitations of that
series.
RANK
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Stock will, with respect to dividend rights and rights upon
liquidation, dissolution, or winding up of IndyMac REIT, rank (i) senior to
all classes or series of Common Stock of IndyMac REIT and to all equity
securities issued by IndyMac REIT the terms of which provide that they shall
rank junior to the Preferred Stock; (ii) on a parity with all equity
securities issued by IndyMac REIT other than those referred to in clauses (i)
and (iii); and (iii) junior to all equity securities issued by IndyMac REIT
which the terms of the Preferred Stock provide will rank senior to it. The
term "equity securities" does not include convertible debt securities.
DIVIDENDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Stock will have the rights with respect to payment of dividends set
forth below.
Holders of the Preferred Stock of each series will be entitled to receive,
when, as, and if declared by the Board of Directors out of assets of IndyMac
REIT legally available for their payment, cash dividends in such amounts and
on such dates as will be set forth in the applicable Prospectus Supplement.
Each dividend shall be payable to holders of record as they appear on the
stock transfer books of IndyMac REIT on such record dates as shall be fixed by
the Board of Directors.
Dividends on any series of Preferred Stock may be cumulative or non-
cumulative, as provided in the applicable Prospectus Supplement. Dividends, if
cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Directors fails to declare a
dividend payable on a dividend payment date on any series of Preferred Stock
for which dividends are non-cumulative, then the holders of that series of
Preferred Stock will have no right to receive a dividend for the related
dividend period, and IndyMac REIT will have no obligation to pay the dividend
accrued for that period, whether or not dividends on that series of Preferred
Stock are declared payable on any future dividend payment date.
A "Dividend Delinquency" exists whenever either (i) full cumulative
dividends have not been or contemporaneously are not declared and paid for all
past dividend periods and the then current dividend period on any series of
Preferred Stock that has a cumulative dividend or (ii) full dividends for the
then current dividend period have not been or contemporaneously are not
declared and paid on any series of Preferred Stock that does not have a
cumulative dividend. Payment of a dividend as discussed in this Prospectus
includes when a dividend has been declared and a sum sufficient for the
payment of the dividend has been set aside for its payment. If Preferred Stock
of any series is outstanding as to which a Dividend Delinquency exists, no
full dividends will be declared or paid, or set apart for payment, on any
capital stock of IndyMac REIT of any other series ranking, as to dividends, on
a parity with or junior to the Preferred Stock of that series. Whenever
dividends on any series of Preferred Stock are not paid in full and other
series of Preferred Stock exist that rank on a parity as to dividends, then
all series of Preferred Stock that rank on a parity to each other as to
dividends shall have their dividends per share declared and paid pro rata to
the ratios that their accrued and unpaid dividends per share bear to each
other. Accumulated unpaid dividends for prior dividend periods shall not be
included in the pro rata calculation for any series of Preferred Stock that
does not have a cumulative dividend. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
Preferred Stock of a series that may be in arrears.
Except as provided in the immediately preceding paragraph, if Preferred
Stock of any series is outstanding as to which a Dividend Delinquency exists,
no dividends (other than in shares of Common Stock or other capital
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stock ranking junior as to dividends and upon liquidation to the Preferred
Stock of the series that has a Dividend Delinquency) shall be declared or paid
nor shall any other distribution be declared or made upon the Common Stock, or
any other capital stock of IndyMac REIT ranking junior to or on a parity as to
dividends or upon liquidation with the Preferred Stock of the series that has
a Dividend Delinquency, nor shall any shares of Common Stock, or any other
capital stock of IndyMac REIT ranking junior to or on a parity as to dividends
or upon liquidation with the Preferred Stock of the series that has a Dividend
Delinquency, be redeemed, purchased, or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares) by IndyMac REIT (except (1) by
conversion into or exchange for other capital stock of IndyMac REIT ranking
junior as to dividends or upon liquidation to the Preferred Stock of the
series that has a Dividend Delinquency or (2) redemptions for the purpose of
preserving IndyMac REIT's status as a REIT).
Any dividend payment made on shares of a series of Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due on
those shares.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred Stock
will be subject to mandatory redemption or redemption at the option of IndyMac
REIT, as a whole or in part, in each case upon the terms, at the times, and at
the redemption prices set forth in the Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of Preferred
Stock that shall be redeemed by IndyMac REIT in each year commencing after a
date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accumulated and unpaid dividends thereon
(which shall not, if the Preferred Stock does not have a cumulative dividend,
include any accumulation of unpaid dividends for prior dividend periods) to
the date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Stock of any series is payable only from the
net proceeds of the issuance of capital stock of IndyMac REIT, the terms of
that Preferred Stock may provide that, if no capital stock shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, the Preferred Stock shall
automatically and mandatorily be converted into the applicable capital stock
of IndyMac REIT pursuant to conversion provisions specified in the applicable
Prospectus Supplement.
Notwithstanding the foregoing, no shares of any series of Preferred Stock
shall be redeemed unless all outstanding Preferred Stock of any series as to
which a Dividend Delinquency exists is simultaneously redeemed. In addition,
IndyMac REIT shall not purchase or otherwise acquire, directly or indirectly,
any shares of Preferred Stock of any series as to which a Dividend Delinquency
exists (except by conversion into or exchange for capital stock of IndyMac
REIT ranking junior as to dividends and upon liquidation to the Preferred
Stock of the series that has a Dividend Delinquency). However, these two
restrictions shall not prevent the purchase or acquisition of any Preferred
Stock necessary to preserve the REIT status of IndyMac REIT or pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding Preferred Stock as to which a Dividend Delinquency exists.
If fewer than all of the outstanding shares of Preferred Stock of any series
are to be redeemed, the number of shares to be redeemed will be determined by
IndyMac REIT and the shares may be redeemed pro rata from the holders of
record of the shares in proportion to the number of shares held or for which
redemption is requested by the holder (with adjustments to avoid redemption of
fractional shares) or by lot in a manner determined by IndyMac REIT.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the stock transfer books of
IndyMac REIT. Each notice shall state: (i) the redemption date; (ii) the
number of shares and
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series of the Preferred Stock to be redeemed; (iii) the redemption price; (iv)
the place or places where certificates for the Preferred Stock are to be
surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accumulate on the redemption date; and
(vi) the date upon which the holder's conversion rights, if any, as to the
shares shall terminate. If fewer than all the shares of Preferred Stock of any
series are to be redeemed, the notice mailed to each holder of the shares to
be redeemed shall also specify the number of shares of Preferred Stock to be
redeemed from that holder. If notice of redemption of any Preferred Stock has
been given and if the funds necessary for the redemption have been set aside
by IndyMac REIT in trust for the benefit of the holders of any Preferred Stock
so called for redemption, then from and after the redemption date dividends
will cease to accumulate on that Preferred Stock, and all rights of the
holders of that Preferred Stock will terminate, except the right to receive
the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution, or winding up of
the affairs of IndyMac REIT (referred to as a "liquidation"), then, before any
distribution or payment shall be made upon any liquidation to the holders of
any Common Stock or any other class or series of capital stock of IndyMac REIT
ranking junior as to the distribution of assets in liquidation to the
Preferred Stock of any series, the holders of each series of Preferred Stock
shall be entitled to receive out of assets of IndyMac REIT legally available
for distribution to shareholders liquidating distributions in the amount of
the liquidation preference per share for the particular series (set forth in
the applicable Prospectus Supplement), plus an amount equal to all dividends
accumulated and unpaid on that series of Preferred Stock (which shall not
include any accumulation of unpaid dividends for prior dividend periods if
that series of Preferred Stock does not have a cumulative dividend). After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of Preferred Stock will have no rights or claim to any
of the remaining assets of IndyMac REIT. Upon any liquidation, if the
available assets of IndyMac REIT are insufficient to pay the amount of the
liquidating distributions on all outstanding Preferred Stock of any series and
the corresponding amounts payable on all shares of other classes or series of
capital stock of IndyMac REIT ranking on a parity with that series of
Preferred Stock in the distribution of assets, then the holders of that series
of Preferred Stock and all other classes or series of capital stock ranking on
a parity shall share ratably in the distribution of assets in proportion to
the full liquidating distributions to which they would otherwise be
respectively entitled.
The consolidation or merger of IndyMac REIT with or into any other entity,
or the merger of another entity with or into IndyMac REIT, or a statutory
share exchange by IndyMac REIT, or the sale, lease, or conveyance of all or
substantially all of the property or business of IndyMac REIT, shall not be
deemed to constitute a liquidation, dissolution, or winding up of IndyMac
REIT.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except as
required by law or as indicated in the applicable Prospectus Supplement.
Under Delaware law holders of each series of Preferred Stock will be
entitled to vote as a class upon a proposed amendment to the Certificate of
Incorporation, whether or not entitled to vote thereon by the Certificate of
Incorporation, if the amendment would increase or decrease the aggregate
number of authorized shares of such series, increase or decrease the par value
of the shares of such series, or alter or change the powers, preferences, or
special rights of the shares of such series so as to affect them adversely.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred Stock
is convertible into shares of Common Stock will be set forth in the applicable
Prospectus Supplement. Those terms will include the number of shares of Common
Stock into which the shares of Preferred Stock are convertible, the conversion
price (or
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manner of calculation thereof), the conversion period, provisions as to
whether conversion will be at the option of the holders of the Preferred Stock
or IndyMac REIT, the events requiring an adjustment of the conversion price,
and provisions affecting conversion in the event of the redemption of the
Preferred Stock.
RESTRICTIONS ON OWNERSHIP
For IndyMac REIT to qualify as a REIT under the Code, not more than 50% in
value of its outstanding capital stock may be owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. In order that IndyMac REIT
may meet these requirements at all times, the Certificate of Incorporation
prohibits any person or group of persons from acquiring or holding, directly
or indirectly, ownership of capital stock in excess of 9.8% of the outstanding
shares. See "Restrictions on Ownership of Capital Stock." These provisions of
the Certificate of Incorporation and the Code will be applicable to any series
of Preferred Stock. The applicable Prospectus Supplement will specify any
ownership limitation relating to a series of Preferred Stock.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Preferred Stock will be set forth
in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
IndyMac REIT may issue receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fractional interest or a share of a
particular series of Preferred Stock, as specified in the applicable
Prospectus Supplement. Preferred Stock of each series represented by
Depositary Shares will be deposited under a separate Deposit Agreement (each,
a "Deposit Agreement") among IndyMac REIT, the depositary named therein (the
depositary or its successor, the "Preferred Stock Depositary"), and the
holders from time to time of the Depositary Receipts. Subject to the terms of
the Deposit Agreement, each owner of a Depositary Receipt will be entitled, in
proportion to the fractional interest of a share of the particular series of
Preferred Stock represented by the Depositary Shares evidenced by the
Depositary Receipt, to all the rights and preferences of the Preferred Stock
represented by the Depositary Shares (including dividend, voting, conversion,
redemption, and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the
issuance and delivery of the Preferred Shares by IndyMac REIT to the Preferred
Stock Depositary, IndyMac REIT will cause the Preferred Stock Depositary to
issue, on behalf of IndyMac REIT, the Depositary Receipts. Copies of the
applicable form of Deposit Agreement and Depositary Receipt may be obtained
from IndyMac REIT upon request and the following summary of the form thereof
filed as an exhibit to the Registration Statement of which this Prospectus is
a part is qualified in its entirety by reference thereto.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received for the Preferred Stock to the record holders of
the Depositary Receipts evidencing the related Depositary Shares in proportion
to the number of Depositary Receipts owned by the holder, subject to certain
obligations of holders to file proofs, certificates, and other information and
to pay certain charges and expenses to the Preferred Stock Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of
holders to file proofs, certificates, and other information and to pay certain
charges and expenses to the Preferred Stock Depositary, unless the Preferred
Stock Depositary determines that it is not feasible to make the distribution,
in which case the Preferred Stock Depositary may, with the approval of IndyMac
REIT, sell the property and distribute the net proceeds from the sale to the
holders of the Depositary Receipts.
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WITHDRAWAL OF SHARES
Upon surrender of the Depositary Receipts at the corporate trust office of
the Preferred Stock Depositary (unless the related Depositary Shares have
previously been called for redemption), their holders will be entitled to
delivery at that office, to or upon the holder's order, of the number of whole
or fractional shares of Preferred Stock and any money or other property
represented by the Depositary Shares evidenced by the surrendered Depositary
Receipts. Holders of Depositary Receipts will be entitled to receive whole or
fractional shares of the related Preferred Stock on the basis of the
proportion of Preferred Stock represented by each Depositary Share as
specified in the applicable Prospectus Supplement, but holders of those 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 shares of Preferred Stock to be withdrawn, the
Preferred Stock Depositary will deliver to the holder at the same time a new
Depositary Receipt evidencing the excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever IndyMac REIT redeems Preferred Stock held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of the same
redemption date the number of Depositary Shares representing the Preferred
Stock so redeemed, provided IndyMac REIT shall have paid in full to the
Preferred Stock Depositary the redemption price of the Preferred Stock to be
redeemed plus an amount equal to any accrued and unpaid dividends thereon to
the date fixed for redemption. The redemption price per Depositary Share will
be equal to the redemption price and any other amounts per share payable with
respect to the Preferred Stock. If less than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected by the
Preferred Stock Depositary by lot.
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 Receipts evidencing the Depositary
Shares so called for redemption will cease, except the right to receive any
moneys payable upon the redemption and any money or other property to which
the holders of the Depositary Receipts were entitled upon the redemption upon
surrender thereof to the Preferred Stock Depositary.
VOTING OF THE UNDERLYING PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depositary will mail the
information contained in the notice of meeting to the record holders of the
Depositary Receipts evidencing the Depositary Shares which represent the
Preferred Stock. Each record holder of Depositary Receipts evidencing
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
Preferred Stock Depositary as to the exercise of the voting rights pertaining
to the amount of Preferred Stock represented by the holder's Depositary
Shares. The Preferred Stock Depositary will vote the amount of Preferred Stock
represented by the Depositary Shares in accordance with those instructions,
and IndyMac REIT will agree to take all reasonable action which may be deemed
necessary by the Preferred Stock Depositary in order to enable the Preferred
Stock Depositary to do so. The Preferred Stock Depositary will abstain from
voting the amount of Preferred Stock represented by the Depositary Shares to
the extent it does not receive specific instructions from the holders of
Depositary Receipts evidencing the Depositary Shares.
LIQUIDATION PREFERENCE
In the event of liquidation, dissolution, or winding up of IndyMac REIT,
whether voluntary or involuntary, each holder of a Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depositary Share evidenced by the
Depositary Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, are not convertible into Common Stock or any
other securities or property of IndyMac REIT. Nevertheless, if so specified in
the applicable Prospectus Supplement relating to an offering
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of Depositary Shares, the Depositary Receipts may be surrendered by holders
thereof to the Preferred Stock Depositary with written instructions to the
Preferred Stock Depositary to instruct IndyMac REIT to cause conversion of the
Preferred Stock represented by the Depositary Shares evidenced by the
Depositary Receipts into whole shares of Common Stock, other Preferred Stock
of IndyMac REIT or other shares of capital stock, and IndyMac REIT has agreed
that upon receipt of those instructions and any amounts payable in respect
thereof, it will cause the conversion thereof utilizing the same procedures as
those provided for delivery of Preferred Stock to effect the conversion. If
the Depositary Shares evidenced by a Depositary Receipt are to be converted in
part only, one or more new Depositary Receipts will be issued for any
Depositary Shares not to be converted. No fractional shares of Common Stock
will be issued upon conversion, and if the conversion will result in a
fractional share being issued, an amount will be paid in cash by IndyMac REIT
equal to the value of the fractional interest based upon the closing price of
the Common Stock on the last business day prior to the conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares that
represent the Preferred Stock and any provision of the Deposit Agreement may
at any time be amended by agreement between IndyMac REIT and the Preferred
Stock Depositary. However, any amendment that materially and adversely alters
the rights of the holders of Depositary Receipts will not be effective unless
it has been approved by the existing holders of at least a majority of the
Depositary Shares evidenced by the Depositary Receipts then outstanding. No
amendment shall impair the right, subject to certain exceptions in the Deposit
Agreement, of any holder of Depositary Receipts to surrender any Depositary
Receipt with instructions to deliver to the holder the related Preferred Stock
and all money and other property, if any, represented thereby, except in order
to comply with law. Every holder of an outstanding Depositary Receipt at the
time any amendment becomes effective shall be deemed, by continuing to hold
the Depositary Receipt, to consent and agree to the amendment and to be bound
by the Deposit Agreement as amended thereby.
The Deposit Agreement may be terminated by IndyMac REIT upon not less than
30 days' prior written notice to the Preferred Stock Depositary if (i) the
termination is to preserve IndyMac REIT's status as a REIT or (ii) a majority
of each series of Preferred Stock affected by the termination consents to the
termination, whereupon the Preferred Stock Depositary shall deliver or make
available to each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by the holder, such number of whole or fractional
shares of Preferred Stock as are represented by the Depositary Shares
evidenced by the Depositary Receipts. In addition, the Deposit Agreement will
automatically terminate if (i) all outstanding Depositary Shares have been
redeemed, (ii) there has been a final distribution in respect of the related
Preferred Stock in connection with any liquidation, dissolution, or winding up
of IndyMac REIT and the distribution has been distributed to the holders of
Depositary Receipts evidencing the Depositary Shares representing the
Preferred Stock or (iii) each related share of Preferred Stock has been
converted into capital stock of IndyMac REIT not so represented by Depositary
Shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
IndyMac REIT will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition,
IndyMac REIT will pay the fees and expenses of the Preferred Stock Depositary
in connection with the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of the
Preferred Stock Depositary for any duties requested by the holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to
IndyMac REIT notice of its election to do so, and IndyMac REIT may at any time
remove the Preferred Stock Depositary, any resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary. A
successor Preferred Stock Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and 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 $50,000,000.
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MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from IndyMac REIT which are received
by the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor IndyMac REIT will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The
obligations of IndyMac REIT and the Preferred Stock Depositary under the
Deposit Agreement will be limited to performing their duties thereunder in
good faith and without negligence, gross negligence, or willful misconduct,
and IndyMac REIT and the Preferred Stock Depositary will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary
Receipts, Depositary Shares, or Preferred Stock represented thereby unless
satisfactory indemnity is furnished. IndyMac REIT and the Preferred Stock
Depositary may rely on written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock represented thereby
for deposit, holders of Depositary Receipts, or other persons believed to be
competent to give the information, and on documents believed to be genuine and
signed by a proper party.
If the Preferred Stock Depositary receives conflicting claims, requests, or
instructions from any holders of Depositary Receipts, on the one hand, and
IndyMac REIT, on the other hand, the Preferred Stock Depositary shall be
entitled to act on the claims, requests, or instructions received from IndyMac
REIT.
DESCRIPTION OF COMMON STOCK
The Board of Directors of IndyMac REIT has recommended that IndyMac REIT's
stockholders vote to amend the Certificate of Incorporation to increase to 200
million the number of authorized shares of common stock, $.01 par value per
share. The proposal is scheduled to be voted on at IndyMac REIT's Annual
Meeting of Stockholders on May 19, 1998. Subject to stockholder approval,
IndyMac REIT will have authorized capital stock consisting of 200,000,000
shares of common stock, par value $.01 per share and 10,000,000 shares of
preferred stock, par value $.01 per share. At March 31, 1998, IndyMac REIT had
outstanding 66,166,964 shares of common stock.
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock to which any Prospectus Supplement
may relate, including a Prospectus Supplement providing that Common Stock will
be issuable upon conversion of Debt Securities or Preferred Stock. The
statements below describing the Common Stock are in all respects subject to
and qualified in their entirety by reference to the applicable provisions of
the Certificate of Incorporation and Bylaws, as amended (the "Bylaws").
Holders of each share of IndyMac REIT's Common Stock will be entitled to
participate equally in dividends when and as declared by the Board of
Directors and in the distribution of assets of IndyMac REIT upon liquidation.
Each share of Common Stock is entitled to one vote and will be fully paid and
non-assessable by IndyMac REIT upon issuance. Shares of the Common Stock of
IndyMac REIT have no preference, conversion, exchange, preemptive, or
cumulative voting rights. The authorized capital stock of IndyMac REIT may be
increased and altered from time to time as permitted by Delaware law.
The Registrar and Transfer Agent for IndyMac REIT's Common Stock is The Bank
of New York.
RESTRICTIONS ON OWNERSHIP
For IndyMac REIT to qualify as a REIT under the Code not more than 50% in
value of its outstanding capital stock may be owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. In order that IndyMac REIT
may meet these requirements at all times, the Certificate of Incorporation
prohibits any person or group of persons from acquiring or holding, directly
or indirectly, ownership of capital stock in excess of 9.8% of the outstanding
shares. These provisions of the Certificate of Incorporation and the Code will
be applicable to the Common Stock. See "Restrictions on Ownership of Capital
Stock."
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RESTRICTIONS ON OWNERSHIP OF CAPITAL STOCK
For IndyMac REIT to qualify as a REIT under the Code, not more than 50% in
value of its outstanding capital stock may be owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year, and its stock must be
beneficially owned by 100 or more persons during at least 335 days of a
taxable year of 12 months or during a proportionate part of a shorter taxable
year.
In order that IndyMac REIT may meet these requirements at all times, the
Certificate of Incorporation prohibits any person or group of persons from
acquiring or holding, directly or indirectly, ownership of capital stock in
excess of 9.8% of the outstanding shares. Shares of capital stock owned by a
person or group of persons in excess of such amounts are referred to herein as
"Excess Shares." For this purpose, the term "ownership" is defined in
accordance with the REIT provisions of the Code, the constructive ownership
provisions of Section 544 of the Code and Rule 13d-3 promulgated by the
Commission under the Exchange Act and the term "group" is defined to have the
same meaning as that term has for purposes of Section 13(d)(3) of the Exchange
Act. Accordingly, shares of capital stock owned or deemed to be owned by a
person who individually owns less than 9.8% of the shares outstanding may
nevertheless be Excess Shares.
The constructive ownership provisions applicable under Section 544 of the
Code attribute ownership of securities owned by a corporation, partnership,
estate or trust proportionately to its stockholders, partners or
beneficiaries, attribute ownership of securities owned by family members and
partners to other members of the same family, treat securities with respect to
which a person has an option to purchase as actually owned by that person, and
set forth rules as to when securities constructively owned by a person are
considered to be actually owned for the application of such attribution
provisions (i.e., "reattribution"). For purposes of determining whether a
person holds Excess Shares, a person or group will thus be treated as owning
not only shares of Common Stock actually or beneficially owned, but also any
shares of capital stock attributed to such person or group under the
attribution rules described above. Ownership of shares of IndyMac REIT's
capital stock through such attribution is generally referred to as
constructive ownership.
The Certificate of Incorporation also provides that in the event any person
acquires Excess Shares, such Excess Shares are deemed tendered for purchase to
IndyMac REIT. Except as set forth below, the purchase price for such Excess
Shares shall be the closing price on the purchase date of such shares of
capital stock on the New York Stock Exchange or other national securities
exchange on which the stock is listed, the closing bid price on the NASDAQ
System if the stock is not listed on any such exchange or, if neither listed
on an exchange nor quoted on the NASDAQ System, the net asset value of such
shares as determined in good faith by the Board of Directors. The purchase
price of any shares so purchased shall be paid, at the option of IndyMac REIT,
in cash or in the form of an unsecured, subordinated promissory note of
IndyMac REIT bearing interest and having a term to maturity (to be not less
than five nor more than 20 years) as shall be determined by the Board of
Directors. From and after the date fixed for purchase by the Board of
Directors and the tender by IndyMac REIT of the purchase price therefor, each
as specified in IndyMac REIT's notice of its acceptance of the offer of sale
which must be sent to the holder, the holder of any shares to be so purchased
shall cease to be entitled to any rights as a holder of such shares, excepting
only the right to receive payment of the purchase price for such shares.
Under the Certificate of Incorporation, any acquisition of shares of IndyMac
REIT that would result in the disqualification of IndyMac REIT as a REIT under
the Code is void to the fullest extent permitted by law, and the Board of
Directors is authorized to refuse to transfer to a person if, as a result of
the transfer, that person would own Excess Shares. Prior to any transfer or
transaction which, if consummated, would cause a stockholder to own shares in
excess of 9% of the outstanding shares of IndyMac REIT, and in any event upon
demand by the Board of Directors, a stockholder is required to file with
IndyMac REIT an affidavit setting forth, as to that stockholder, the
information required to be reported in returns filed by stockholders under
Regulation 1.857-9 issued by the Internal Revenue Service and in reports filed
under Section 13(d) of the Exchange Act. Additionally, each proposed
transferee of shares of capital stock, upon demand of the Board of Directors,
also may be required to file a statement or affidavit with IndyMac REIT
setting forth the number of shares already owned by the transferee and any
related person.
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IndyMac REIT's Certificate of Incorporation and Bylaws provide that
"disqualified organizations" within the meaning of Section 860E(e)(5) of the
Code, which generally include governmental entities and other tax-exempt
persons not subject to tax on unrelated business taxable income, are
ineligible to hold IndyMac REIT's capital stock. Accordingly, shares of
IndyMac REIT capital stock should not be purchased or held by such
disqualified organizations. See "Certain Federal Income Tax Considerations to
IndyMac REIT of its REIT Election."
All certificates representing shares of capital stock will bear a legend
referring to the restrictions described above.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TO INDYMAC REIT OF ITS REIT ELECTION
The following summary of certain federal income tax considerations to
IndyMac REIT is based on current law, is for general information only, and is
not tax advice. The tax treatment of a holder of any of the Offered Securities
will vary depending upon the terms of the specific securities acquired by such
holder, as well as the holder's particular situation, and this discussion does
not attempt to address any aspects of federal income taxation relating to
holders of Offered Securities. Certain federal income tax considerations
relevant to holders of the Offered Securities will be provided in the
applicable Prospectus Supplement relating thereto.
EACH INVESTOR IS ADVISED TO CONSULT THE APPLICABLE PROSPECTUS SUPPLEMENT, AS
WELL AS SUCH INVESTOR'S OWN TAX ADVISOR, REGARDING THE TAX CONSEQUENCES OF THE
ACQUISITION, OWNERSHIP AND SALE OF THE OFFERED SECURITIES, INCLUDING THE
FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH ACQUISITION,
OWNERSHIP AND SALE AND OF POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF INDYMAC REIT AS A REIT
General. IndyMac REIT has elected to be taxed as a REIT under Sections 856
through 860 of the Code, commencing with its taxable year ending December 31,
1985. IndyMac REIT believes that, commencing with its taxable year ending
December 31, 1985, it has been organized and is operating in such a manner as
to qualify for taxation as a REIT under the Code commencing with such taxable
year, and IndyMac REIT intends to continue to operate in such a manner, but no
assurance can be given that it has operated or will operate in a manner so as
to qualify or remain qualified.
These sections of the Code are highly technical and complex. The following
sets forth the material aspects of the sections that govern the federal income
tax treatment of a REIT. This summary is qualified in its entirety by the
applicable Code provisions, rules and regulations promulgated thereunder, and
administrative and judicial interpretations thereof. Brown & Wood LLP has
acted as tax counsel to IndyMac REIT in connection with the operation of
IndyMac REIT and the preparation of the Registration Statement of which this
Prospectus is a part.
As a condition to the closing of each offering of Offered Securities, other
than offerings of medium term notes and as otherwise specified in the
applicable Prospectus Supplement, tax counsel to IndyMac REIT will render an
opinion to IndyMac REIT to the effect that, commencing with IndyMac REIT's
taxable year ending December 31, 1985, IndyMac REIT has been organized in
conformity with the requirements for qualification as a REIT, and its proposed
method of operation will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code. It must be emphasized
that this opinion will be based on various assumptions and will be conditioned
upon certain representations to be made by IndyMac REIT as to factual matters
and that such tax counsel to IndyMac REIT undertakes no obligation hereby to
update any such opinion subsequent to its date. In addition, this opinion will
be based upon the factual representations of IndyMac REIT as set forth in this
Prospectus and assumes that the actions described in this Prospectus are
completed in a timely fashion. Moreover, such qualification and taxation as a
REIT depends upon IndyMac REIT's ability to meet, through actual annual
operating results, distribution levels and diversity of stock ownership, the
various
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qualification tests imposed under the Code discussed below, the results of
which have not been and will not be reviewed by such tax counsel to IndyMac
REIT. Accordingly, no assurance can be given that the actual results of
IndyMac REIT's operation of any particular taxable year will satisfy such
requirements. See "--Failure to Qualify."
If IndyMac REIT qualifies for taxation as a REIT, it generally will not be
subject to federal corporate income taxes on its net income that is currently
distributed to stockholders. This treatment substantially eliminates the
"double taxation" (at the corporate and stockholder levels) that generally
results from investment in a regular corporation. However, IndyMac REIT will
be subject to federal income tax as follows: First, IndyMac REIT will be taxed
at regular corporate rates on any undistributed REIT taxable income, including
undistributed net capital gains. Second, under certain circumstances, IndyMac
REIT may be subject to the "alternative minimum tax" on its items of tax
preference. Third, if IndyMac REIT has (i) net income from the sale or other
disposition of "foreclosure property" which is held primarily for sale to
customers in the ordinary course of business or (ii) other non-qualifying
income from foreclosure property, it will be subject to tax at the highest
corporate rate on such income. Fourth, if IndyMac REIT has net income from
prohibited transactions (which are, in general, certain sales or other
dispositions of property held primarily for sale to customers in the ordinary
course of business other than foreclosure property), such income will be
subject to a 100% tax. Fifth, if IndyMac REIT should fail to satisfy the 75%
gross income test or the 95% gross income test (as discussed below), but has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on an amount
equal to (a) the gross income attributable to the greater of the amount by
which IndyMac REIT fails the 75% or 95% test, multiplied by (b) a fraction
intended to reflect IndyMac REIT's profitability. Sixth, if IndyMac REIT
should fail to distribute during each calendar year at least the sum of (i)
85% of its REIT ordinary income for such year, (ii) 95% of its REIT capital
gain net income for such year, and (iii) any undistributed taxable income from
prior periods, IndyMac REIT would be subject to a 4% excise tax on the excess
of such required distribution over the amounts actually distributed. Seventh,
if IndyMac REIT has record shareholders that are "disqualified organizations"
within the meaning of Section 860E(e)(5) of the Code (generally government
organizations and other tax-exempt persons not subject to the tax on unrelated
business taxable income imposed by Section 511 of the Code) and IndyMac REIT
earns income from collateralized mortgage obligations or real estate mortgage
investment conduit residual interests in excess of particular yields ("excess
inclusion income"), it will be subject to tax at the highest corporate rate on
such record shareholders' share of its excess inclusion income. However,
IndyMac REIT's Certificate of Incorporation and Bylaws provide that
disqualified organizations are ineligible to hold IndyMac REIT's shares.
Requirements for Qualification. The Code defines a REIT as a corporation,
trust or association (1) which is managed by one or more trustees or
directors, (2) the beneficial ownership of which is evidenced by transferable
shares, or by transferable certificates of beneficial interest, (3) which
would be taxable as a domestic corporation, but for Sections 856 through 859
of the Code, (4) which is neither a financial institution nor an insurance
company subject to certain provisions of the Code, (5) the beneficial
ownership of which is held by 100 or more persons, (6) during the last half of
each taxable year, not more than 50% in value of the outstanding stock of
which is owned, directly or constructively, by five or fewer individuals (as
defined in the Code to include certain entities) and (7) which meets certain
other tests, described below, regarding the nature of its income and assets.
The Code provides that conditions (1) to (4) must be met during the entire
taxable year and that condition (5) must be met during at least 335 days of a
taxable year of 12 months, or during a proportionate part of a taxable year of
less than 12 months. Conditions (5) and (6) will not apply until after the
first taxable year for which an election is made to be taxed as a REIT.
IndyMac REIT has satisfied condition (5) and believes that it has satisfied
condition (6). In addition, IndyMac REIT's Certificate of Incorporation
provides for restrictions regarding ownership and transfer of IndyMac REIT's
capital stock, which restrictions are intended to assist IndyMac REIT in
continuing to satisfy the share ownership requirements described in (5) and
(6) above. The ownership and transfer restrictions pertaining generally to the
capital stock are described in "Restrictions on Ownership of Capital Stock"
or, to the extent such restrictions differ from those described in this
Prospectus, such restrictions will be described in
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the applicable Prospectus Supplement. There can be no assurance, however, that
such transfer restrictions will in all cases prevent a violation of the stock
ownership provisions described in (5) and (6) above.
Code Section 856(i) provides that a corporation which is a "qualified REIT
subsidiary" shall not be treated as a separate corporation, and all assets,
liabilities, and items of income, deduction, and credit of a "qualified REIT
subsidiary" shall be treated as assets, liabilities and such items (as the
case may be) of the REIT. Thus, in applying the requirements described herein,
IndyMac REIT's "qualified REIT subsidiaries" will be ignored, and all assets,
liabilities and items of income, deduction, and credit of such subsidiaries
will be treated as assets, liabilities and items of IndyMac REIT. Moreover,
with respect to each subsidiary of IndyMac REIT formed subsequent to IndyMac
REIT's taxable year ending December 31, 1985, IndyMac REIT has owned 100% of
the stock of such subsidiary at all times during the period such subsidiary
has been in existence. Therefore, all of IndyMac REIT's subsidiaries are
"qualified REIT subsidiaries" within the meaning of the Code. See "--Recently
Enacted Legislation."
Income Tests. In order to maintain qualification as a REIT, IndyMac REIT
annually must satisfy three gross income requirements. First, at least 75% of
IndyMac REIT's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived directly or indirectly
from investments relating to real property or mortgages on real property
(including "rents from real property" and, in certain circumstances, interest)
or from certain types of temporary investments. Second, at least 95% of
IndyMac REIT's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived from such real property
investments, dividends, interest and gain from the sale or disposition of
stock or securities (or from any combination of the foregoing). Third, short-
term gain from the sale or other disposition of stock or securities, gain from
prohibited transactions and gain on the sale or other disposition of real
property held for less than four years (apart from involuntary conversions and
sales of foreclosure property) must represent less than 30% of IndyMac REIT's
gross income (including gross income from prohibited transactions) for each
taxable year. This 30% gross income test has been repealed for tax years
beginning on or after January 1, 1998. See "--Recently Enacted Legislation."
The term "interest" generally does not include any amount received or
accrued (directly or indirectly) if the determination of such amount depends
in whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term "interest"
solely by reason of being based on a fixed percentage or percentages of
receipts or sales.
If IndyMac REIT fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such
year if it is entitled to relief under certain provisions of the Code. These
relief provisions will generally be available if IndyMac REIT's failure to
meet such tests was due to reasonable cause and not due to willful neglect,
IndyMac REIT attaches a schedule of the sources of its income to its federal
income tax return, and any incorrect information on the schedule was not due
to fraud with intent to evade tax. It is not possible, however, to state
whether in all circumstances IndyMac REIT would be entitled to the benefit of
these relief provisions. As discussed above under "--General," even if these
relief provisions apply, a tax would be imposed with respect to the excess net
income.
Asset Tests. IndyMac REIT, at the close of each quarter of its taxable year,
must also satisfy three tests relating to the nature of its assets. First, at
least 75% of the value of IndyMac REIT's total assets must be represented by
real estate assets (including (i) assets held by IndyMac REIT's qualified REIT
subsidiaries and IndyMac REIT's allocable share of real estate assets held by
partnerships in which IndyMac REIT owns an interest and (ii) stock or debt
instruments held for not more than one year purchased with the proceeds of a
stock offering or long-term (at least five years) debt offering of IndyMac
REIT), cash, cash items and government securities. Second, not more than 25%
of IndyMac REIT's total assets may be represented by securities other than
those in the 75% asset class. Third, of the investments included in the 25%
asset class, the value of any one issuer's securities owned by IndyMac REIT
may not exceed 5% of the value of IndyMac REIT's total assets and IndyMac REIT
may not own more than 10% of any one issuer's outstanding voting securities.
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As set forth above, the ownership of more than 10% of the voting securities
of any one issuer by a REIT is prohibited by the asset tests. However, if
IndyMac REIT's subsidiaries are "qualified REIT subsidiaries" as defined in
the Code, such subsidiaries will not be treated as separate corporations for
federal income tax purposes. Thus, IndyMac REIT's ownership of stock of a
"qualified REIT subsidiary" will not cause IndyMac REIT to fail the asset
tests.
Annual Distribution Requirements. IndyMac REIT, in order to qualify as a
REIT, is required to distribute dividends (other than capital gain dividends)
to its stockholders in an amount at least equal to (A) the sum of (i) 95% of
IndyMac REIT's "REIT taxable income" (computed without regard to the dividends
paid deduction and IndyMac REIT's net capital gain) and (ii) 95% of the net
income (after tax), if any, from foreclosure property, minus (B) the sum of
certain items of non-cash income. Such distributions must be paid in the
taxable year to which they relate, or in the following taxable year if
declared before IndyMac REIT timely files its tax return for such year and if
paid on or before the first regular dividend payment after such declaration.
To the extent that IndyMac REIT does not distribute all of its net capital
gain or distributes at least 95%, but less than 100%, of its "REIT taxable
income," as adjusted, it will be subject to tax thereon at regular ordinary
and capital gain corporate tax rates. Furthermore, if IndyMac REIT should fail
to distribute during each calendar year at least the sum of (i) 85% of its
REIT ordinary income for such year, (ii) 95% of its REIT capital gain income
for such year, and (iii) any undistributed taxable income from prior periods,
IndyMac REIT would be subject to a 4% excise tax on the excess of such
required distribution over the amounts actually distributed. IndyMac REIT
intends to make timely distributions sufficient to satisfy this annual
distribution requirement.
It is possible that IndyMac REIT, from time to time, may not have sufficient
cash or other liquid assets to meet the 95% distribution requirement due to
timing differences between (i) the actual receipt of income and actual payment
of deductible expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at taxable income of IndyMac REIT. In the event that
such timing differences occur, in order to meet the 95% distribution
requirement, IndyMac REIT may find it necessary to arrange for short-term, or
possibly long-term, borrowings or to pay dividends in the form of taxable
stock dividends.
Under certain circumstances, IndyMac REIT may be able to rectify a failure
to meet the distribution requirement for a year by paying "deficiency
dividends" to stockholders in a later year, which may be included in IndyMac
REIT's deduction for dividends paid for the earlier year. Thus, IndyMac REIT
may be able to avoid being taxed on amounts distributed as deficiency
dividends; however, IndyMac REIT will be required to pay interest based upon
the amount of any deduction taken for deficiency dividends.
FAILURE TO QUALIFY
If IndyMac REIT fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, IndyMac REIT will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Such a failure to qualify for taxation as a REIT
could have an adverse effect on the market value and marketability of the
Offered Securities. Distributions to stockholders in any year in which IndyMac
REIT fails to qualify will not be deductible by IndyMac REIT nor will they be
required to be made. In such event, to the extent of current and accumulated
earnings and profits, all distributions to stockholders will be taxable as
ordinary income and, subject to certain limitations of the Code, corporate
distributees may be eligible for the dividends received deduction. Unless
entitled to relief under specific statutory provisions, IndyMac REIT will also
be disqualified from taxation as a REIT for the four taxable years following
the year during which qualification was lost. It is not possible to state
whether in all circumstances IndyMac REIT would be entitled to such statutory
relief.
RECENTLY ENACTED LEGISLATION
On August 5, 1997, President Clinton signed into law the Taxpayer Relief Act
of 1997 (H.R. 2014), which has the effect of modifying certain REIT-related
Code provisions for tax years of IndyMac REIT beginning on or after January 1,
1998. The following list sets forth the significant changes contained in this
legislation: (i) the
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rule disqualifying a REIT for any year in which it fails to comply with
certain regulations requiring the REIT to monitor its stock ownership is
replaced with an intermediate financial penalty; (ii) the rule disqualifying a
REIT that is "closely held" (i.e., during the last half of each taxable year,
50% or more in value of a REIT's outstanding stock is owned by five or fewer
individuals) does not apply if during such year the REIT complied with certain
regulations which require the REIT to monitor its stock ownership, and the
REIT did not know or have reason to know that it was closely held; (iii) a
REIT is permitted to render a de minimis amount of impermissible services to
tenants in connection with the management of property and still treat amounts
received with respect to such property (other than certain amounts relating to
such services) as qualified rent; (iv) the rules regarding attribution to
partnerships for purposes of defining qualified rent and independent
contractors are modified so that attribution occurs only when a partner owns a
25% or greater interest in the partnership; (v) the 30% gross income test is
repealed; (vi) any corporation wholly-owned by a REIT is permitted to be
treated as a qualified REIT subsidiary regardless of whether such subsidiary
has always been owned by the REIT; (vii) the class of excess noncash items for
purposes of the REIT distribution requirements is expanded; (viii) property
that is involuntarily converted is excluded from the prohibited transaction
rules; (ix) the rules relating to shared appreciation mortgages are modified;
(x) income from all hedges that reduce the interest rate risk of REIT
liabilities, including rate swap or cap agreements, options, futures and
forward rate contracts, is included in qualifying income for purposes of the
95% income test; (xi) a REIT is able to elect to retain and pay income tax on
its net long-term capital gains, and if such election is made, the REIT's
shareholders include in income their proportionate share of the undistributed
long-term capital gain and are deemed to have paid their proportionate share
of tax paid by the REIT; (xii) the rules relating to the grace period for
foreclosure property are modified and (xiii) certain other Code provisions
relating to REITs are amended.
OTHER TAX MATTERS
IndyMac REIT may be subject to state or local taxation in various state or
local jurisdictions, including those in which it transacts business. The state
or local tax treatment of IndyMac REIT may not conform to the federal income
tax consequences described above. Consequently, prospective investors should
consult their own tax advisors regarding the effect of state and local tax
laws on an investment in IndyMac REIT.
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PLAN OF DISTRIBUTION
IndyMac REIT may sell the Offered Securities to one or more underwriters for
public offering and sale by them or may sell the Offered Securities to
investors directly or through agents. Any underwriter or agent involved in the
offer and sale of the Offered Securities will be named in the applicable
Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, at prices related to the prevailing market
prices at the time of sale or at negotiated prices. IndyMac REIT also may,
from time to time, authorize underwriters acting as IndyMac REIT's agents to
offer and sell the Offered Securities upon the terms and conditions as are set
forth in the applicable Prospectus Supplement. In connection with the sale of
Offered Securities, underwriters may be deemed to have received compensation
from IndyMac REIT in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of Offered Securities for whom they
may act as agent. Underwriters may sell Offered Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions, or commissions from the underwriters or commissions from the
purchasers for whom they may act as agent, or both.
Any underwriting compensation paid by IndyMac REIT to underwriters or agents
in connection with the offering of Offered Securities, and any discounts,
concessions, or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Underwriters,
dealers, and agents participating in the distribution of the Offered
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Offered
Securities may be deemed to be underwriting discounts and commissions under
the Securities Act. Underwriters, dealers, and agents may be entitled, under
agreements entered into with IndyMac REIT, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act.
If so indicated in the applicable Prospectus Supplement, IndyMac REIT will
authorize dealers acting as IndyMac REIT's agents to solicit offers by certain
institutions to purchase Offered Securities from IndyMac REIT at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on the
date or dates stated in the Prospectus Supplement.
Each Contract will be for an amount not less than, and the aggregate
principal amount of Offered Securities sold pursuant to Contracts shall be not
less nor more than, the respective amounts stated in the applicable Prospectus
Supplement. Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions, but will in all cases be subject to the approval of IndyMac
REIT. Contracts will not be subject to any conditions except (i) the purchase
by an institution of the Offered Securities covered by its Contracts shall not
at the time of delivery be prohibited under the laws of any jurisdiction in
the United States to which the institution is subject, and (ii) if the Offered
Securities are being sold to underwriters, IndyMac REIT shall have sold to the
underwriters the total principal amount of the Offered Securities less the
principal amount thereof covered by Contracts.
Certain of the underwriters and their affiliates may be customers of, engage
in transactions with, and perform services for IndyMac REIT in the ordinary
course of business.
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EXPERTS
The consolidated financial statements and financial statement schedule of
IndyMac REIT and the financial statements of IndyMac Operating included in
IndyMac REIT's Annual Report on Form 10-K for the year ended December 31,
1997, which is incorporated by reference in this Prospectus, have been
incorporated herein in reliance on the report of Grant Thornton LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for IndyMac REIT
by Brown & Wood LLP, New York, New York.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offerings of the Securities are as follows:
<TABLE>
<S> <C>
Securities Act Registration Fee................................. $147,500
Printing and Engraving Expenses................................. 40,000
Legal Fees and Expenses......................................... 385,000
Accounting Fees and Expenses.................................... 90,000
Miscellaneous................................................... 10,000
--------
$672,500
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
IndyMac REIT's Certificate of Incorporation, as amended, eliminates personal
liability of directors to IndyMac REIT or its shareholders for monetary
damages for breach of fiduciary duty as a director, except for: (i) any breach
of the duty of loyalty to IndyMac REIT or its shareholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or knowing
violations of law; (iii) liability under Section 174 of the General
Corporation Law of the State of Delaware relating to certain unlawful
dividends and stock repurchases; or (iv) any transaction from which the
director derived an improper personal benefit. The Certificate of
Incorporation, as amended, also provides that IndyMac REIT shall indemnify and
advance expenses to each director, officer, employee and agent to the fullest
extent permitted by the General Corporation Law of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he or
she is or was a director, officer, employee or agent of IndyMac REIT or is or
was serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her
in connection with such action, suit or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of IndyMac REIT and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
As permitted by Section 145 of the General Corporation Law of the State of
Delaware, IndyMac REIT's Bylaws, as amended, provide for indemnification of
directors, officers, employees and agents of IndyMac REIT to the fullest
extent authorized by Delaware law against expenses (including attorney's fees)
and other amounts paid in settlement actually and reasonably incurred by them
in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, in which
any such person was or is a party or is threatened to be made a party. The
right to indemnification includes the right to be paid the expenses incurred
in defending or investigating a threatened or pending action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding; provided that, if required by Delaware law, payment of expenses in
advance to an officer or director shall be conditioned upon receipt by IndyMac
REIT of an undertaking by or on behalf of such director or office to repay
such amount if it is ultimately determined that he is not entitled to
indemnification. The advancement of expenses, as well as indemnification,
pursuant to IndyMac REIT's Bylaws, as amended, is not exclusive of any other
rights which those seeking indemnification or advancement of expenses from
IndyMac REIT may have. IndyMac REIT also maintains an insurance policy
pursuant to which its directors and officers are insured against certain
liabilities which might arise out of their relationship with IndyMac REIT as
directors and officers.
II-1
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ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1(a) --Form of Underwriting Agreement for Debt Securities*
(b) --Form of Underwriting Agreement for Equity Securities*
4(a) --Form of Indenture between IndyMac REIT and Chase Manhattan Bank and
Trust Company, National Association, as Trustee
(b) --Form of Debt Security*
(c) --Common Stock Certificate
(d) --Form of Designating Amendment for Preferred Stock*
(e) --Form of Preferred Stock Certificate*
(f) --Form of Deposit Agreement, including form of Depositary Receipt Certificate
representing Depositary Shares
5 --Opinion of Brown & Wood LLP
8 --Opinion of Brown & Wood LLP regarding tax matters**
23(a) --Consent of Grant Thornton LLP
(b) --Consent of Brown & Wood LLP (included in Exhibit 5)
24 --Power of Attorney (included on Page II-5)
25 --Statement of Eligibility of Trustee on Form T-1**
</TABLE>
- --------
* To be filed by amendment or incorporated by reference in connection with an
offering of Offered Securities.
** Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities would not exceed that which was registered) and any
deviation from the low or high and 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 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 this registration statement or
any material change to such information in this registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed with or furnished to
the Securities and Exchange 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 this 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
herein, 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.
II-2
<PAGE>
(b) The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, if 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 this
registration statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 provisions described under Item 15 of this
registration statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the Securities
being registered, the Registrant will, unless in the opinion of 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 such Act and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
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 THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS POST-EFFECTIVE
AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-41329 TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF PASADENA,
STATE OF CALIFORNIA ON THIS 18TH DAY OF MAY, 1998
INMC MORTGAGE HOLDINGS, INC.
By:
/s/ Michael W. Perry
----------------------------------
Michael W. Perry
President and Chief Operating
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David S. Loeb, Angelo R. Mozilo, and Michael W.
Perry and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place,
and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Post-Effective Amendment No. 1
to Registration Statement No. 333-41329, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 1 to Registration Statement No. 333-41329 has been
signed below by the following persons in the capacities and on the dates
indicated:
SIGNATURES TITLE DATE
Chairman of the
/s/ David S. Loeb Board of Directors May 18, 1998
- -------------------------------------
David S. Loeb
Vice Chairman of the
/s/ Angelo R. Mozilo Board of Directors May 18, 1998
- ------------------------------------- and Chief Executive
Angelo R. Mozilo Officer
President, Chief
/s/ Michael W. Perry Operating Officer May 18, 1998
- ------------------------------------- and Director
Michael W. Perry
/s/ James P. Gross Executive Vice May 18, 1998
- ------------------------------------- President and Chief
James P. Gross Financial Officer
Director
/s/ Lyle E. Gramley May 18, 1998
- -------------------------------------
Lyle E. Gramley
Director
/s/ Thomas J. Kearns May 18, 1998
- -------------------------------------
Thomas J. Kearns
Director
/s/ Frederick J. Napolitano May 18, 1998
- -------------------------------------
Frederick J. Napolitano
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
1(a) --Form of Underwriting Agreement for Debt Securities*
(b) --Form of Underwriting Agreement for Equity Securities*
4(a) --Form of Indenture between IndyMac REIT and Chase Manhattan Bank and
Trust Company, National Association, as Trustee
(b) --Form of Debt Security*
(c) --Common Stock Certificate
(d) --Form of Designating Amendment for Preferred Stock*
(e) --Form of Preferred Stock Certificate*
(f) --Form of Deposit Agreement, including form of Depositary Receipt Certificate
representing Depositary Shares
5 --Opinion of Brown & Wood LLP
8 --Opinion of Brown & Wood LLP regarding tax matters**
23(a) --Consent of Grant Thornton LLP
(b) --Consent of Brown & Wood LLP (included in Exhibit 5)
24 --Power of Attorney (included on Page II-5)
25 --Statement of Eligibility of Trustee on Form T-1**
</TABLE>
- --------
* To be filed by amendment or incorporated by reference in connection with an
offering of Offered Securities.
** Previously filed.
II-5
<PAGE>
EXHIBIT 4(a)
INMC MORTGAGE HOLDINGS, INC.,
Issuer
to
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
Trustee
_______________
INDENTURE
_______________
Dated as of _________, 1997
Debt Securities
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
(S)310(a)(1) 6.7
(a)(2) 6.7
(b) 6.8
(S)312(a) 7.1
(b) 7.2
(c) 7.2
(S)313(a) 7.3
(b)(2) 7.3
(c) 7.3
(d) 7.3
(S)314(a) 7.4
(c)(1) 1.2
(c)(2) 1.2
(e) 1.2
(f) 1.2
(S)316(a) (last sentence) 1.1
(a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(b) 5.8
(S)317(a)(1) 5.3
(a)(2) 5.4
(b) 10.3
(S)318(a) 1.8
- ---------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to and
including 317 are a part of and govern every qualified indenture,
whether or not physically contained herein.
ii
<PAGE>
TABLE OF CONTENTS
Recitals............................................................. 1
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1.Definitions.............................................. 2
Act............................................................ 2
Additional Amounts............................................. 2
Affiliate...................................................... 2
Authenticating Agent........................................... 3
Authorized Newspaper........................................... 3
Bearer Security................................................ 3
Board of Directors............................................. 3
Board Resolution............................................... 3
Business Day................................................... 3
Commission..................................................... 3
Common Stock................................................... 3
Company........................................................ 3
Company Request and Company Order.............................. 4
Conversion Event............................................... 4
Corporate Trust Office......................................... 4
Corporation.................................................... 4
Coupon......................................................... 4
Currency....................................................... 4
CUSIP number................................................... 4
Defaulted Interest............................................. 4
Dollars or $................................................... 4
ECU............................................................ 4
European Monetary System....................................... 4
European Union................................................. 5
Event of Default............................................... 5
Foreign Currency............................................... 5
GAAP........................................................... 5
Government Obligations......................................... 5
Holder......................................................... 5
Indebtedness................................................... 5
Indenture...................................................... 5
Independent Public Accountants................................. 6
Indexed Security............................................... 6
Interest....................................................... 6
iii
<PAGE>
Interest Payment Date.......................................... 6
Judgment Currency.............................................. 6
Legal Holidays................................................. 6
Maturity....................................................... 6
New York Banking Day........................................... 6
Office or Agency............................................... 6
Officers' Certificate.......................................... 6
Opinion of Counsel............................................. 7
Original Issue Discount Security............................... 7
Outstanding.................................................... 7
Paying Agent................................................... 8
Person......................................................... 8
Place of Payment............................................... 8
Predecessor Security........................................... 8
Preferred Stock................................................ 8
Redemption Date................................................ 9
Redemption Price............................................... 9
Registered Security............................................ 9
Regular Record Date............................................ 9
Required Currency.............................................. 9
Responsible Officer............................................ 9
Restricted Subsidiary.......................................... 9
Security or Securities......................................... 9
Security Register and Security Registrar....................... 9
Special Record Date............................................ 9
Stated Maturity................................................ 9
Subsidiary..................................................... 10
Trust Indenture Act............................................ 10
Trustee........................................................ 10
United States.................................................. 10
United States Alien............................................ 10
U.S. Depository or Depository.................................. 10
Vice President................................................. 10
Voting Stock................................................... 10
Section 1.2.Compliance Certificates and Opinions..................... 11
Section 1.3.Form of Documents Delivered to Trustee................... 11
Section 1.4.Acts of Holders.......................................... 12
Section 1.5.Notices, etc. to Trustee and Company..................... 14
Section 1.6.Notice to Holders of Securities; Waiver.................. 14
Section 1.7.Language of Notices...................................... 15
Section 1.8.Conflict with Trust Indenture Act........................ 15
Section 1.9.Effect of Headings and Table of Contents................. 15
Section 1.10.Successors and Assigns.................................. 16
Section 1.11.Separability Clause..................................... 16
Section 1.12.Benefits of Indenture................................... 16
iv
<PAGE>
Section 1.13.Governing Law........................................... 16
Section 1.14.Legal Holidays.......................................... 16
Section 1.15.Counterparts............................................ 17
Section 1.16.Judgment Currency....................................... 17
ARTICLE 2
SECURITIES FORMS
Section 2.1.Forms Generally.......................................... 17
Section 2.2.Form of Trustee's Certificate of Authentication.......... 18
Section 2.3.Securities in Global Form................................ 18
ARTICLE 3
THE SECURITIES
Section 3.1.Amount Unlimited; Issuable in Series..................... 19
Section 3.2.Currency; Denominations.................................. 23
Section 3.3.Execution, Authentication, Delivery and Dating........... 23
Section 3.4.Temporary Securities..................................... 25
Section 3.5.Registration, Transfer and Exchange...................... 26
Section 3.6.Mutilated, Destroyed, Lost and Stolen Securities......... 30
Section 3.7.Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved..... 31
Section 3.8.Persons Deemed Owners.................................... 33
Section 3.9.Cancellation............................................. 33
Section 3.10.Computation of Interest................................. 34
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1.Satisfaction and Discharge............................... 34
Section 4.2.Defeasance and Covenant Defeasance....................... 36
Section 4.3.Application of Trust Money............................... 40
v
<PAGE>
ARTICLE 5
REMEDIES
Section 5.1.Events of Default........................................ 40
Section 5.2.Acceleration of Maturity; Rescission and Annulment....... 42
Section 5.3.Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................. 43
Section 5.4.Trustee May File Proofs of Claim......................... 44
Section 5.5.Trustee May Enforce Claims without Possession of Securities
or Coupons............................................... 45
Section 5.6.Application of Money Collected........................... 45
Section 5.7.Limitations on Suits..................................... 46
Section 5.8.Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts................. 46
Section 5.9.Restoration of Rights and Remedies....................... 47
Section 5.10.Rights and Remedies Cumulative.......................... 47
Section 5.11.Delay or Omission Not Waiver............................ 47
Section 5.12.Control by Holders of Securities........................ 47
Section 5.13.Waiver of Past Defaults................................. 48
Section 5.14.Waiver of Stay or Extension Laws........................ 48
Section 5.15.Undertaking for Costs................................... 48
ARTICLE 6
THE TRUSTEE
Section 6.1.Certain Rights of Trustee................................ 49
Section 6.2.Notice of Defaults....................................... 50
Section 6.3.Not Responsible for Recitals or Issuance of Securities... 51
Section 6.4.May Hold Securities...................................... 51
Section 6.5.Money Held in Trust...................................... 51
Section 6.6.Compensation and Reimbursement........................... 51
Section 6.7.Corporate Trustee Required; Eligibility.................. 52
Section 6.8.Resignation and Removal; Appointment of Successor........ 53
Section 6.9.Acceptance of Appointment by Successor................... 54
Section 6.10.Merger, Conversion, Consolidation or Succession to
Business................................................. 56
Section 6.11.Appointment of Authenticating Agent..................... 56
vi
<PAGE>
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1.Company to Furnish Trustee Names and Addresses of Holders. 58
Section 7.2.Preservation of Information; Communications to Holders... 58
Section 7.3.Reports by Trustee....................................... 59
Section 7.4.Reports by Company....................................... 59
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1.Company May Consolidate, Etc., Only on Certain Terms..... 60
Section 8.2.Successor Person Substituted for Company................. 61
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1.Supplemental Indentures without Consent of Holders....... 61
Section 9.2.Supplemental Indentures with Consent of Holders.......... 62
Section 9.3.Execution of Supplemental Indentures..................... 64
Section 9.4.Effect of Supplemental Indentures........................ 64
Section 9.5.Reference in Securities to Supplemental Indentures....... 64
Section 9.6.Conformity with Trust Indenture Act...................... 64
ARTICLE 10
COVENANTS
Section 10.1.Payment of Principal, any Premium, Interest and Additional
Amounts.................................................. 65
Section 10.2.Maintenance of Office or Agency......................... 65
Section 10.3.Money for Securities Payments to Be Held in Trust....... 66
Section 10.4.Additional Amounts...................................... 68
Section 10.5.Corporate Existence..................................... 69
Section 10.6.Waiver of Certain Covenants............................. 69
Section 10.7.Company Statement as to Compliance; Notice of Certain
Defaults................................................. 69
Section 10.8.Maintenance of Properties............................... 70
vii
<PAGE>
Section 10.9.Payment of Taxes and Other Claims....................... 70
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1.Applicability of Article................................ 70
Section 11.2.Election to Redeem; Notice to Trustee................... 71
Section 11.3.Selection by Trustee of Securities to be Redeemed....... 71
Section 11.4.Notice of Redemption.................................... 72
Section 11.5.Deposit of Redemption Price............................. 73
Section 11.6.Securities Payable on Redemption Date................... 73
Section 11.7.Securities Redeemed in Part............................. 74
ARTICLE 12
SINKING FUNDS
Section 12.1.Applicability of Article................................ 75
Section 12.2.Satisfaction of Sinking Fund Payments with Securities... 75
Section 12.3.Redemption of Securities for Sinking Fund............... 76
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1.Applicability of Article................................ 76
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1.Applicability of Article................................ 77
viii
<PAGE>
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1.Purposes for Which Meetings May Be Called............... 77
Section 15.2.Call, Notice and Place of Meetings...................... 77
Section 15.3.Persons Entitled to Vote at Meetings.................... 78
Section 15.4.Quorum; Action.......................................... 78
Section 15.5.Determination of Voting Rights; Conduct and Adjournment of
Meetings................................................. 79
Section 15.6.Counting Votes and Recording Action of Meetings......... 80
ix
<PAGE>
INDENTURE, dated as of ______, 1997 (the "Indenture"), among INMC MORTGAGE
HOLDINGS, INC., a corporation duly organized and existing under the laws of
Delaware (hereinafter called the "Company"), having its principal executive
office located at 155 North Lake Avenue, Pasadena, California 91101, and CHASE
MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, a national banking
association (hereinafter called the "Trustee"), having its Corporate Trust
Office located at 101 California Street, Suite 2725, San Francisco, California
94111.
Recitals
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of Indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
1
<PAGE>
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the terms
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified in
Section 1.4.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"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 the meanings correlative to
the foregoing.
2
<PAGE>
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.11 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each 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 day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant to
Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"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 Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"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, and any other obligor upon the Securities.
3
<PAGE>
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"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 original execution of this Indenture
is located at 101 California Street, Suite 2725, San Francisco, California
94111 or such other office location as may be designated by the Trustee in
writing from time to time.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a Security
by Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from time
to time by the Council of the European Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European Community.
4
<PAGE>
"European Union" means the European Community, the European Coal and Steel
Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means such accounting principles as are generally accepted in the
United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or any
premium or interest on such Security or any Additional Amounts in respect
thereof shall be payable, in each case where the payment or payments thereunder
are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or other amount with respect
to any such 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 Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depository receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness", with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property of,
or guaranteed by, such Person and computed in accordance with GAAP.
"Indenture" means this instrument 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, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
5
<PAGE>
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such Additional
Amounts.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
"Legal Holidays" has the meaning specified in Section 1.14.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 10.2 or, to the
extent designated or required by Section 10.2 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
that complies with the requirements of Section 314(e) of the Trust Indenture Act
and is delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.
"Outstanding", when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 4.2) with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities and any Coupons appertaining thereto, provided that,
if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance pursuant to the terms hereof, except to the extent
provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation of
the Company; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock, Preferred Stock or other
securities, if the terms of such Security provide for such
conversion or exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent
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or waiver hereunder or are present at a meeting of Holders of Securities for
quorum purposes, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 5.2 at the time of such
determination, and (ii) the principal amount of any Indexed Security that may be
counted in making such determination and that shall be deemed outstanding for
such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided in or pursuant to this
Indenture, and (iii) the principal amount of a Security denominated in a Foreign
Currency shall be the Dollar equivalent, determined on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (i) above) of
such Security, and (iv) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor, shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee knows to
be so owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee (A) the pledgee's right so to act with
respect to such Securities and (B) that the pledgee is not the Company or any
other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Preferred Stock" includes any stock of any class of the Company that is
designated in the certificate of incorporation of the Company as preferred stock
or that has a preference with respect to dividends or the amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company.
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"Redemption Date", with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to be
redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to Section
2.1 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means the President, any Vice President, Assistant
Vice President or Trust Officer of the Trustee in its Corporate Trust Office 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.
"Restricted Subsidiary" means such entity or entities, if any, as may be
set forth in a supplemental Indenture, Board Resolution or an Officers'
Certificate, establishing a series of Securities.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
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"Subsidiary" means any Corporation of which at the time of determination
the Company or one or more Subsidiaries owns or controls directly or indirectly
more than 50% of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more than one
such Person, "Trustee" shall mean each such Person and as used with respect to
the Securities of any series shall mean the Trustee with respect to the
Securities of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock of a Corporation of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such Corporation provided
that, for the purposes hereof, stock which
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carries only the right to vote conditionally on the happening of an event shall
not be considered voting stock whether or not such event shall have happened.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, 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
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Section 1.3. 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 an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
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Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depository
that is a Holder of a global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S. Depository's
standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other Act, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be valid or effective if made, given or
taken more than 90 days after such record date.
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(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder
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of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent or the Company
in reliance thereon, whether or not notation of such Act is made upon such
Security.
Section 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other 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 the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on
a Business Day at least twice, the first such publication to be not
earlier than the earliest date and the second such publication not later
than the latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of
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Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or
provided. In the case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election
or waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon 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 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, 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 of Securities or
Coupons, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.13. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
Section 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to the next
succeeding Business Day.
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Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding that on which a final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may,
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consistently herewith, be determined by the officers executing such Security or
Coupon as evidenced by their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
TRUSTEE'S NAME,
as Trustee
By____________________
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 3.3 or 3.4 has been, or
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simultaneously is, delivered, any instructions by the Company with respect to a
Security in global form shall be in writing but need not be accompanied by or
contained in an Officers' Certificate and need not be accompanied by an Opinion
of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any Additional Amounts in respect of, any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 3.1.
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities
of such title or the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities authenticated
and delivered upon registration or transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Section 3.4, 3.5,
3.6, 9.5 or 11.7, upon repayment on part of any Registered Security of
such series pursuant to Article Thirteen, upon surrender in part of any
Registered Security for conversion or exchange into Common Stock,
Preferred Stock or other securities pursuant to its terms, or pursuant to
the terms of such Securities);
(3) if such Securities are to be issuable as Registered Securities,
as Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the
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Bearer Securities are to be issuable with Coupons, without Coupons or
both, and any restrictions applicable to the offer, sale or delivery of
the Bearer Securities and the terms, if any, upon which Bearer Securities
may be exchanged for Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent global
form or both, (ii) whether beneficial owners of interests in any such
global Security may exchange such interests for Securities of the same
series and of like tenor and of any authorized form and denomination, and
the circumstances under which any such exchanges may occur, if other than
in the manner specified in Section 3.5, and (iii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to any
global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest Payment
Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer 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;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest,
if any, or the method or methods, if any, by which such rate or rates are
to be determined, the date or dates, if any, from which such interest
shall accrue or the method or methods, if any, by which such date or dates
are to be determined, the Interest Payment Dates, if any, on which such
interest shall be payable and the Regular Record Date, if any, for the
interest payable on Registered Securities on any Interest Payment Date,
whether and under what circumstances Additional Amounts on such Securities
or any of them shall be payable, the notice, if any, to Holders regarding
the determination of interest on a floating rate Security and the manner
of giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any premium
and interest on or any Additional Amounts with respect to such Securities
shall be payable, any of such
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Securities that are Registered Securities may be surrendered for
registration of transfer or exchange, any of such Securities may be
surrendered for conversion or exchange and notices or demands to or upon
the Company in respect of such Securities and this Indenture may be
served, the extent to which, or the manner in which, any interest payment
or Additional Amounts on a global Security on an Interest Payment Date,
will be paid and the manner in which any principal of or premium, if any,
on any global Security will be paid;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the period
or periods within which, the price or prices at which and the other terms
and conditions upon which such Securities may be redeemed, in whole or in
part, at the option of the Company;
(11) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or
purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible into
shares of Common Stock, Preferred Stock and/or exchangeable for other
securities, and if so, the terms and conditions upon which such Securities
will be so convertible or exchangeable, and any deletions from or
modifications or additions to this Indenture to permit or to facilitate
the issuance of such convertible or exchangeable Securities or the
administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.2 or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts
with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or otherwise,
in Dollars or in a Foreign Currency other than that in which such
Securities are stated to be payable, the date or dates on which, the
period or
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periods within which, and the other terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange
rate between the Currency in which such Securities are stated to be
payable and the Currency in which such Securities or any of them are to be
paid pursuant to such election, and any deletions from or modifications of
or additions to the terms of this Indenture to provide for or to
facilitate the issuance of Securities denominated or payable, at the
election of the Company or a Holder thereof or otherwise, in a Foreign
Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or
other indices), and, if so, the terms and conditions upon which and the
manner in which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to any of such
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(19) if either or both of Section 4.2(4)(b) relating to defeasance or
Section 4.2(4)(c) relating to covenant defeasance shall not be applicable
to the Securities of such series, or any covenants in addition to those
specified in Section 4.2(4)(c) relating to the Securities of such series
which shall be subject to covenant of defeasance, and any deletions from,
or modifications or additions to, the provisions of Article Four in
respect of the Securities of such series;
(20) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(21) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities; and
(22) any other terms of such Securities (including, but not limited
to, any additional covenants of the Company applicable to such Securities)
and any deletions from or modifications or additions to this Indenture in
respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the rate of interest, or
method of determining the rate of interest, if any, Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be
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provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
All Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series or
to establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be established
by action taken by or pursuant to a Board Resolution, the Board Resolution shall
be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities shall be payable by check in Dollars. Unless otherwise provided in
or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman of
the Board, one of its Vice Chairmen, its President, its Treasurer or one of its
Vice Presidents under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the Treasurer or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with the provisions of this
Indenture;
(b) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities, and Coupons, when completed by
appropriate insertions, executed under the Company's corporate seal and
attested by duly authorized officers of the Company, delivered by duly
authorized officers of the Company to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be subject
to or limited by bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting creditors' rights generally, and subject to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of this Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have been
complied with; and
(d) this Indenture has been qualified under the Trust Indenture Act;
and
(2) an Officers' Certificate stating that, to the best knowledge of the
Persons executing such certificate, no event which is, or after notice or lapse
of time would become, an Event of Default with respect to any of the Securities
shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each
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Security, but such opinion and certificate, with appropriate modifications,
shall be delivered at or before the time of issuance of the first Security of
such series. After any such first delivery, any separate request by the Company
that the Trustee authenticate Securities of such series for original issue will
be deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to
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those of any temporary Securities, such temporary Securities shall be
exchangeable for such definitive Securities upon surrender of such temporary
Securities at an Office or Agency for such Securities, without charge to any
Holder thereof. Upon surrender for cancellation of any one or more temporary
Securities (accompanied by any unmatured Coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series and containing identical terms and provisions;
provided, however, that no definitive Bearer Security, except as provided in or
pursuant to this Indenture, shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in or pursuant to this Indenture.
Unless otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at any Office or Agency for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series denominated as authorized in or pursuant to this Indenture, of a like
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the
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Securities to be exchanged at any Office or Agency for such series. Whenever
any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities
of any series, at the option of the Holder, Bearer Securities of such series may
be exchanged for Registered Securities of such series containing identical
terms, denominated as authorized in or pursuant to this Indenture and in the
same aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. 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
and the Trustee 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 10.2, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor 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 date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of 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, shall 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 shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to Securities of
any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall
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authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, any global Security shall be exchangeable for definitive
Securities only if (i) the Depository is at any time unwilling, unable or
ineligible to continue as Depository and a successor depository is not appointed
by the Company within 90 days of the date the Company is so informed in writing,
(ii) the Company executes and delivers to the Trustee a Company Order to the
effect that such global Security shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for definitive Securities as the result of an event described in
clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary
delay but in any event not later than the earliest date on which such interests
may be so exchanged, the Company shall deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in aggregate
principal amount equal to the principal amount of such global Security, executed
by the Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such other Depository, as the case may be
(which instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities as described above without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such surrendered global Security, a like aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged, which (unless
such Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof, but subject to the satisfaction of
any certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the
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opening of business at such Office or Agency on the next Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of like tenor and the same
series under Section 11.3 and ending at the close of business on the day of such
selection, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except, to the
extent provided with respect to such Bearer Security, that such Bearer Security
may be exchanged for a Registered Security of like tenor and the same series,
provided that such Registered Security shall be immediately surrendered for
redemption with written instruction for payment consistent with the provisions
of this Indenture or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not to
be so repaid.
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Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 10.2, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen Coupon appertains
shall constitute a separate obligation of the Company, whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
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The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest
on and any Additional Amounts with respect to any Registered Security which
shall be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered by check as of the close of business
on the Regular Record Date for such interest. Unless otherwise provided in or
pursuant to this Indenture, in case a Bearer Security is surrendered in exchange
for a Registered Security after the close of business at an Office or Agency for
such Security on any Regular Record Date therefor and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date
therefor, such Bearer Security shall be surrendered without the Coupon relating
to such Interest Payment Date and interest shall not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon when due
in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest
on and any Additional Amounts with respect to any Registered Security which
shall be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on 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 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 on or prior to the date of the proposed payment, such
money when so deposited to be held in trust for the benefit of the Person
entitled to such Defaulted Interest as in this Clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed
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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 Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company cause a similar notice to be published at least once in an
Authorized Newspaper of general circulation in the Borough of Manhattan,
The City of New York, but such publication shall not be a condition
precedent to the establishment of 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 Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on 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
Defaulted Interest and Defaulted Interest shall not be payable on such
proposed date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security 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 payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 3.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
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
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Interest Payment Date (other than any Registered Security with respect to which
the Stated Maturity is prior to such Interest Payment Date), interest with
respect to which the 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 with respect to which the Stated Maturity is after the date of
conversion of such Registered Security shall not be payable.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
nor the Trustee or 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 bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, nor the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons,
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as well as Securities and Coupons surrendered directly to the Trustee for any
such purpose, shall be cancelled promptly by the Trustee. The Company may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be cancelled promptly
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by or pursuant to this Indenture. All cancelled Securities and
Coupons held by the Trustee shall be destroyed by the Trustee, unless by a
Company Order the Company directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
3.5, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
3.6, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 11.7, and (iv) 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 10.3) have been delivered to the Trustee for
cancellation; or
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(b) all Securities of such series and, in the case of (i) or (ii)
below, any Coupons appertaining thereto 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) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose, money in the Currency in which such Securities are payable in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities and any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation, including the principal of, any premium
and interest on, and any Additional Amounts with respect to such
Securities and any Coupons appertaining thereto, to the date of such
deposit (in the case of Securities which have become due and payable) or
to the Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of
such series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.5 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in
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respect of such Additional Amounts pursuant to Section 4.1(1)(b)), and with
respect to any rights to convert or exchange such Securities into Common Stock
or other securities shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 4.2 shall
not be applicable with respect to the Securities of such series or (ii) covenant
defeasance of the Securities of or within a series under clause (3) of this
Section 4.2 shall not be applicable with respect to the Securities of such
series, then such provisions, together with the other provisions of this Section
4.2 (with such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 4.2(2) or Section 4.2(3) be applied
to such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable to this
Section 4.2(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 4.2 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 4.2 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 4.2
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, and any rights of such Holder to convert or
exchange such Securities into Common Stock, Preferred Stock or other securities,
(ii) the obligations of the Company and the Trustee with respect to such
Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any
rights to convert or exchange such Securities into Common Stock, Preferred Stock
or other securities, (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (iv) this Section 4.2. The Company may exercise its
option under this
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Section 4.2(2) notwithstanding the prior exercise of its option under clause (3)
of this Section 4.2 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 4.2(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 10.5, 10.8 and 10.9 and,
to the extent specified pursuant to Section 3.1, any other covenant applicable
to such Securities, with respect to such Outstanding Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in clause
(4) of this Section 4.2 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any Coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company may omit to comply with, and shall have no
liability in respect of, any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 5.1(4) or 5.1(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and Coupons appertaining thereto shall be
unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 4.2 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.7 who shall agree to comply with the provisions of this
Section 4.2 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and Coupons appertaining thereto
(determined on the basis of the Currency in which such Securities and
Coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any Coupons
appertaining thereto, money in an amount, or (3) a combination thereof, in
any case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
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qualifying trustee) to pay and discharge, (y) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities and
any Coupons appertaining thereto on the Stated Maturity of such principal
or installment of principal or interest and (z) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any Coupons appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any Coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit and, with respect to defeasance only, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2,
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from the Internal Revenue
Service a letter ruling, or there has been published by the Internal
Revenue Service a Revenue Ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under clause (3) of this Section 4.2,
the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance under clause (2) or (3)
of this Section 4.2 (as the case may be) have been complied with.
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(g) Notwithstanding any other provisions of this Section 4.2(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 4.2(5) and
Section 4.3, the "Trustee") pursuant to clause (4) of Section 4.2 in respect of
any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto 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 Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 4.2(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.1 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 4.2 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government
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Obligations (or other property and any proceeds therefrom) held by it as
provided in clause (4) of this Section 4.2 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee by the Company, are in excess of
the amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
and Government Obligations deposited with the Trustee pursuant to Section 4.1 or
4.2 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons 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, premium, interest and Additional Amounts for whose payment such
money has or Government Obligations have been deposited with or received by the
Trustee; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
ARTICLE 5
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on or any Additional Amounts
payable in respect of any Security of such series when such interest becomes or
such Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of such series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment when and as due by
the terms of a Security of such series; or
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(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or the Securities (other than a covenant or
warranty a default in the performance or the breach of which is elsewhere in
this Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities 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 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
(5) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company or any Restricted Subsidiary, whether
such Indebtedness now exists or shall hereafter be created, shall happen and
shall result in such Indebtedness in principal amount in excess of $10,000,000
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not be rescinded
or annulled, or such Indebtedness shall not have been discharged, within a
period of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company shall fail within 60 days to pay, bond or otherwise
discharge any uninsured judgment or court order for the payment of money in
excess of $10,000,000, which is not stayed on appeal or is not otherwise being
appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(b) a decree or order adjudging the Company or any Restricted
Subsidiary to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company or
any Restricted Subsidiary and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of the
Company or any Restricted Subsidiary or of any substantial part of the
property of the Company or any Restricted Subsidiary, as the case may be,
or ordering the winding up or liquidation of the affairs of the Company or
any Restricted Subsidiary; or
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(8) the commencement by the Company or any Restricted Subsidiary of a
voluntary proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or of a voluntary proceeding seeking to be adjudicated
insolvent or the consent by the Company or any Restricted Subsidiary to the
entry of a decree or order for relief in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any insolvency proceedings against it, or the filing by the
Company or any Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the Company
or any Restricted Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or similar official of the Company or any Restricted
Subsidiary or any substantial part of the property of the Company or any
Restricted Subsidiary or the making by the Company or any Restricted Subsidiary
of an assignment for the benefit of creditors, or the taking of corporate action
by the Company or any Restricted Subsidiary in furtherance of any such action;
or
(9) any other Event of Default provided in or pursuant to this Indenture
with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (7) or (8)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the 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 the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after Securities of any series have been accelerated 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 not less
than a majority in principal amount of the Outstanding 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 of money
sufficient to pay
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(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series and any Coupon
appertaining thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and interest thereon and any Additional Amounts with respect thereto at
the rate or rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or Additional Amounts
is lawful, interest upon overdue installments of any interest and
Additional Amounts at the rate or rates borne by or provided for in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 6.6; and
(2) all Events of Default with respect to Securities of such series, other
than the non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to Securities of such series which shall have
become due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. 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 or
any Additional Amounts with respect to any Security or any Coupon appertaining
thereto when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium on
any Security at its Maturity,
the Company shall, upon demand of the Trustee or the Holders of not less than
25% in principal amount of Outstanding Securities, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due to the Trustee under Section
6.6.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money 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 Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and
unpaid in respect of the Securities and any Coupons appertaining thereto
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents or counsel) and of the Holders of Securities or
any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts 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 aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
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THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding 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 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 or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium and (subject to Sections 3.5
and 3.7) interest on, and any Additional Amounts with respect to such Security
or payment of such Coupon, as the case may be, on the respective Stated Maturity
or Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment at the option of
such Holder if provided in or pursuant to this Indenture, on the date such
repayment is due) and to
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institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon 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 each such Holder 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 each such Holder shall continue as though no such proceeding had
been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons in the last paragraph
of Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to each and every Holder of a Security or a Coupon is intended to be
exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall 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, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or a Coupon may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on,
or any Additional Amounts with respect to, any Security of such series or
any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver (and delivery to the Trustee of written notice of
such waiver), such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 5.14. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) 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 expressly waives (to the extent
that it may lawfully do so) 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.
Section 5.15. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by
his acceptance
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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 or omitted by
it as Trustee, the filing by any party litigant in such suit of any 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 5.15 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 Outstanding Securities of any series, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock, Preferred Stock or other securities in
accordance with its terms.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) 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, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 3.3 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) 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 shall be herein specifically
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prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto 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;
(6) 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, coupon 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, during business hours and upon reasonable notice, the books,
records and premises of the Company, personally or by agent or attorney;
and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 6.2. Notice of Defaults.
Within 90 days after receipt of written notice of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series entitled to receive reports pursuant
to Section 7.3(3), notice of such default hereunder, 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, if
any, on, or Additional Amounts or any sinking fund or purchase fund installment
with respect to, any Security of such series, the Trustee shall have no
liability for 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 best interest of the Holders of Securities and Coupons of such
series; and provided, further, that in the case of any default of the character
specified in Section 5.1(5) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof.
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For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or reasonable expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses (including
reasonable attorneys' fees and expenses and court costs) of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties hereunder, except to the
extent that any such loss, liability or expense was due to the Trustee's
negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 5.1 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 6.6 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 6.6.
Section 6.7. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) on a consolidated
basis with its parent or other Affiliates of at least $50,000,000 subject to
supervision or examination by Federal or state authority. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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Section 6.8. Resignation and Removal; Appointment of Successor.
(1) 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 pursuant to Section 6.9.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.9 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 such
series.
(3) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any Holder of a Security of such series who has been a bona fide Holder of
a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.7 and
shall fail to resign after written request therefor by the Company or any
such Holder, or
(c) 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 or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a
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successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
6.9. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.9, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner required by
Section 6.9, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect
to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the request
of the Company or such successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and,
subject to Section 10.3, 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
6.6.
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(2) Upon the appointment hereunder of any successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee 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, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 10.3
shall duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject to
its claim, if any, provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a 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 (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
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Section 6.10. 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,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and,
together with its parent or other Affiliates, has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at
least $50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
TRUSTEE'S NAME,
As Trustee
By_____________________________
As Authenticating Agent
By_____________________________
Authorized Officer
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If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later
than January 15 and June 15 of the year or upon such other dates as are
set forth in or pursuant to the Board Resolution or indenture supplemental
hereto authorizing such series, a list, in each case in such form as the
Trustee may reasonably require, of the names and addresses of Holders as
of the applicable date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the Trustee,
any Paying Agent or any Security Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312(c) of the Trust Indenture
Act, regardless of the source from which such information was derived, and
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that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first May
15 following the first issuance of Securities pursuant to Section 3.1, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of
the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 7.4. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company,
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs
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(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Company as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Company); provided,
however, that:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company as an entirety or substantially as an entirety shall be a Corporation
organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by an indenture
(or indentures, if at such time there is more than one Trustee) supplemental
hereto, executed by the successor Person and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
any premium and interest on and any Additional Amounts with respect to all the
Securities and the performance of every obligation in this Indenture and the
Outstanding Securities on the part of the Company to be performed or observed
and shall provide for conversion or exchange rights in accordance with the
provisions of the Securities of any series that are convertible or exchangeable
into Common Stock, Preferred Stock or other securities;
(2) immediately after giving effect to such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
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Section 8.2. Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and thereafter, except in
the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to 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 Person to the Company, and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (as shall be specified in such supplemental
indenture or indentures) or to surrender any right or power herein conferred
upon the Company; or
(3) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any Coupons appertaining
thereto in any material respect; or
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(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 2.1 and 3.1, including
provisions with respect to conversion or exchange rights of Holders of
Securities of any series; or
(5) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.9; or
(6) to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any Coupons appertaining thereto in
any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (as shall be specified in such supplemental
indenture); or
(9) 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, provided that any such action
shall not adversely affect the interests of any Holder of a Security of such
series and any Coupons appertaining thereto or any other Security or Coupon in
any material respect; or
(10) to secure the Securities; or
(11) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities then
Outstanding.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's 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
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the Holders of Securities of such series under this Indenture or of the
Securities of such series; provided, however, that no such supplemental
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional Amounts
pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and permitted
by Section 9.1(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 or the amount
thereof provable in bankruptcy pursuant to Section 5.4, change the redemption
provisions or adversely affect the right of repayment at the option of any
Holder as contemplated by Article Thirteen, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date
or, in the case of repayment at the option of the Holder, on or after the date
for repayment or in the case of change in control, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 15.4 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.6, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby, or
(4) make any change that adversely affects the right to convert or
exchange any Security for Common Stock, Preferred Stock or other securities in
accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included expressly and solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities 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.
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Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 9.4. 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 a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 9.6. 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.
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ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of such series are listed on such exchange. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such Office or Agency. If at any time the Company shall fail to maintain any
such required Office or Agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities shall be made at any Office or Agency 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, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such 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 one or more other Offices
or Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an Office or Agency
in each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency. Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates as the Place of Payment for each series of Securities the
Borough of Manhattan, The City of New York, and initially appoints the Corporate
Trust Office of the Trustee as the Office or Agency of the Company in the
Borough of Manhattan, The City of New York for such purpose. The Company may
subsequently appoint a different Office or Agency in the Borough of Manhattan,
The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 10.3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any series
of Securities, it shall, on or prior to each due date of the principal of, any
premium or interest on or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying Agent a sum (in the currency or
currencies, currency unit or units or composite currency or currencies described
in the preceding paragraph) sufficient to pay the principal or any premium,
interest or Additional Amounts so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to 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 provided in or
pursuant to this Indenture;
(2) give the Trustee written notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal, any premium or interest on or any Additional Amounts with respect
to the 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 terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon receipt by the Trustee of such sums from any Paying Agent, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided,
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however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment for such series or to
be mailed to Holders of Registered Securities of such series, or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out
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of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
Section 10.5. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and its rights (charter and statutory) and franchises; provided,
however, that the foregoing shall not obligate the Company to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to any Holder.
Section 10.6. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.5, 10.8 and 10.9 and such other
covenants, if any, as may be set forth in a supplemental Indenture, Board
Resolution or an Officers' Certificate with respect to the Securities of any
series if before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series, by Act of such
Holders, either shall waive such compliance in such instance or generally shall
have waived compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 10.7. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(a) a review of the activities of the Company during such year and of
its performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Company has complied with all the conditions and covenants imposed on
it under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such condition or covenant, specifying
each such default known to him or her and the nature and status thereof,
and (b) no event has occurred and is continuing which is, or after notice
or lapse of time or both would become, an Event of Default, or, if such an
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event has occurred and is continuing, specifying each such event known to
him and the nature and status thereof.
(2) The Company shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any Event of Default or any event which
after notice or lapse of time or both would become an Event of Default pursuant
to clause (4) of Section 5.1.
Section 10.8. Maintenance of Properties.
The Company will cause all of its properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or any
Subsidiary from selling or otherwise disposing for value its properties in the
ordinary course of its business.
Section 10.9. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
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Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of (a) less than all of the Securities of any series or (b) all of
the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue date,
interest rate or formula, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Registered Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Registered Security of such series not
redeemed to less than the minimum denomination for a Security of such series
established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock, Preferred Stock or other securities in
part before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
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Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.6,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due
and payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished,
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(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 the Redemption Date pursuant to Section 3.5 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock, Preferred Stock or other securities, the
conversion or exchange price or rate, the date or dates on which the right to
convert or exchange the principal of the Securities of such series to be
redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers of
such Securities, if any (or any other numbers used by a Depository to identify
such Securities).
A notice of redemption published as contemplated by Section 1.6 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, 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 10.3) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 3.1 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption
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Date, such Security shall be paid by the Company at the Redemption Price,
together with any accrued interest and Additional Amounts to the Redemption
Date; provided, however, that, except as otherwise provided in or pursuant to
this Indenture or the Bearer Securities of such series, installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of Coupons for such
interest (at an Office or Agency located outside the United States except as
otherwise provided in Section 10.2), and provided, further, that, except as
otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor
according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the 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. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent 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; provided, however, that any
interest or Additional Amounts represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such
Security located outside of the United States except as otherwise provided in
Section 10.2.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with
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respect thereto to the Trustee, without service charge, a new Security in global
form in a denomination equal to and in exchange for the unredeemed portion of
the principal of the Security in global form so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying
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Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 3.9, shall not
operate as a payment, redemption or satisfaction of the Indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
13.1, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of
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such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee or, in the absence of such written notice, as the Trustee
may determine.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 15.1, to be held at such time
and at such place in the
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Borough of Manhattan, The City of New York, or, if Securities of such series
have been issued in whole or in part as Bearer Securities, in London or in such
place outside the United States as the Trustee shall determine. Notice of every
meeting of Holders of Securities 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, in the manner provided in Section 1.6, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 15.1, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 1.6) or shall
not thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the
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adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.2(1), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid only by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities of
such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.4 or other proof.
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(2) 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 Securities as provided in Section 15.2(2), in which
case the Company or the Holders of Securities of the series 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
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] INMC MORTGAGE HOLDINGS, INC.
Attest:
By ____________________________________
Name:
Title:
[SEAL] CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
Attest:
By ______________________________________
Name:
Title:
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STATE OF _________)
: SS.:
COUNTY OF ________)
On the _____ day of ________________, 199_, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of INMC MORTGAGE HOLDINGS, INC., a Delaware
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed to
said instrument is such Corporation's seal; that it was so affixed by authority
of the Board of Directors of said Corporation; and that he signed his name
thereto by like authority.
____________________________
Notary Public
[NOTARIAL SEAL]
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STATE OF _________)
: SS.:
COUNTY OF ________)
On the _____ day of ________________, 199_, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association, one of the persons described in and
who executed the foregoing instrument; that he knows the seal of said
Corporation; that the seal affixed to said instrument is such Corporation's
seal; that it was so affixed by authority of the Board of Directors of said
Corporation; and that he signed his name thereto by like authority.
____________________________
Notary Public
[NOTARIAL SEAL]
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EXHIBIT 4(c)
COMMON STOCK COMMON STOCK
INCORPORATED UNDER PAR VALUE
THE LAWS OF THE STATE $0.01
OF DELAWARE
NUMBER SHARES
DNY SPECIMEN
CUSIP 44977L 10 0
CWM MORTGAGE HOLDINGS, INC.
SEE REVERSE FOR STATEMENT OF RESTRICTIONS ON
ACQUISITION AND TRANSFER PROVISIONS TO WHICH
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT
This Certifies that
Specimen Certificate
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
NAME CHANGED TO
INMC MORTGAGE HOLDINGS, INC.
CWM Mortgage Holdings, Inc., transferable only on the books of the Corporation
in person or by Attorney duly authorized in writing upon surrender of this
certificate properly endorsed.
This Certificate is issued by the Board of Directors of CWM Mortgage
Holdings, Inc. acting not individually but as such Board of Directors and is not
valid until countersigned and registered by the transfer agent and registrar.
Witness, the seal and the signatures of the duly authorized officers of
the Corporation in facsimile.
Dated:
CWM MORTGAGE HOLDINGS, INC.
CORPORATE
SEAL
1987
DELAWARE
Countersigned and Registered:
THE BANK OF NEW YORK
Transfer Agent and Registrar
By /s/ Richard A. Wohl /s/ illegible
Authorized Signature Secretary Chairman
<PAGE>
ARTICLE VI. RESTRICTION ON ACQUISITION AND TRANSFER OF SHARES.
SECTION 1. Whenever it is deemed by the Board of Directors to be prudent in
protecting the status of the Corporation as a "real estate investment trust"
under the Internal Revenue Code of 1986, as amended (the "Code"), the Board of
Directors may require to be filed with the Corporation as a condition to
permitting any proposed transfer, and/or the registration of any transfer, of
shares of the Corporation a statement or affidavit from any proposed transferee
setting forth the number of shares already owned after application of the
attribution rules (the "Attribution Rules") of Section 544 of the Code by the
transferee and any related person(s) specified in the form prescribed by the
Board of Directors for that purpose. All contracts for the sale or other
transfer of shares of the Corporation shall be subject to this provision.
SECTION 2. As a condition to the transfer and/or registration of transfer of
any shares of capital stock of the Corporation which would result in any
stockholder owning, directly or indirectly, shares in excess of 9% of the
outstanding shares of capital stock of the Corporation, the transferee of such
shares shall file with the Corporation an affidavit setting forth the number of
shares of capital stock of the Corporation owned directly and indirectly by the
person filing the affidavit. For purposes of this Section, shares of capital
stock not owned directly shall be deemed to be owned indirectly by a person if
that person or group of which he is a member would be the beneficial owner of
such shares for purposes of Rule 13d-3, or any successor rule thereto,
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934 (the "Exchange Act"), and/or would be considered to own
such shares by reason of the Attribution Rules. The affidavit to be filed with
the Corporation shall set forth all information required to be reported in
returns filed by stockholders under Regulation 1.857-9 issued by the Internal
Revenue Service, or similar provisions of any successor regulation, and in
reports to be filed under Section 13(d) of the Exchange Act. The affidavit, or
an amendment thereto, must be filed with the Corporation within 10 days after
demand therefor and in any event at least 15 days prior to any transfer,
registration of transfer or transaction which, if consummated, would cause the
filing person to hold shares in excess of 9% of the outstanding shares of
capital stock of the Corporation. No transfer nor any registration of any
purported transfer in violation of the notice provisions of this Section shall
be valid or be given effect. Notwithstanding the foregoing, compliance with the
requirements of this Section 2 shall not validate any purported transfer which
would result in any stockholder owning, directly or indirectly, shares in excess
of the "Limit" as defined in Section 4 of this Article VI.
SECTION 3. Any acquisition of shares of capital stock of the Corporation that
would result in any stockholder owning, directly or indirectly, shares in excess
of the "Limit" as defined in Section 4 of this Article VI shall be void ab
initio to the fullest extent permitted under applicable law and the intended
transferee of "Excess Shares," as defined in Section 4 of this Article VI, shall
be deemed never to have had an interest therein. If the foregoing provision is
determined to be void, voidable or invalid by virtue of any legal decision,
statute, rule or regulation, then the transferee of such shares shall be deemed
to have acted as agent on behalf of the Corporation in acquiring such shares and
to hold such shares on behalf of the Corporation.
SECTION 4. Notwithstanding any other provision hereof to the contrary, and
subject to the provisions of Section 5 of this Article VI, no person, or persons
acting as a group, shall at any time directly or indirectly acquire ownership in
the aggregate of more than 9.8% of the outstanding shares of capital stock of
the Corporation (the "Limit"). Shares which would, but for this Section 4, be
owned by a person or a group of persons in excess of the Limit at any time shall
be deemed "Excess Shares." For the purposes of determining and dealing with
Excess Shares, the term "ownership" shall be defined to include shares of
capital stock constructively owned by a person under the Attribution Rules and
shall also include shares of capital stock beneficially owned by a person for
purposes of Rule 13d-3, or any successor rule thereto, promulgated by the
Securities and Exchange Commission under the Exchange Act and the term "group"
shall have the same meaning as that term has for purposes of Section 13(d)(3) of
such Act. All shares of the Corporation which any person has the right to
acquire upon exercise of outstanding rights, options and warrants, and upon
conversion of any securities convertible into shares, if any, shall be
considered outstanding for purposes of the Limit if such inclusion will cause
such person to own more than the Limit. Unless otherwise required by applicable
law, the Corporation shall refuse to transfer or register the transfer of, and
shall instruct the transfer agent of the Corporation to refuse to transfer or
register the transfer of, shares to the extent that, as a result of such
transfer or registration of transfer, any person would hold Excess Shares.
SECTION 5. The Limit set forth in Sections 3 and 4 of this Article VI and the
filing requirements of Section 2 of this Article VI shall not apply to the
acquisition of shares of the Corporation by the Corporation, by an underwriter
in connection with a public offering of shares of the Corporation, or in any
transaction involving the issuance of shares by the Corporation, in which the
Board of Directors determines that the underwriter or other person or party
initially acquiring such shares will timely distribute such shares to or among
others such that, following such distribution, none of such shares will be
Excess Shares. The Board of Directors in its discretion may exempt from the
Limit under Sections 3 and 4 of this Article VI and from the filing requirements
of Section 2 of this Article VI ownership or transfers of certain designated
shares while owned by or transferred to any subsidiary of this Corporation or to
any other person in connection with a reorganization, recapitalization, merger,
liquidation or similar transaction approved by the Board of Directors, provided
that such person has given the Board of Directors evidence and assurances
acceptable to the Board of Directors that the qualification of the Corporation
as a "real estate investment trust" under the Code would not be jeopardized
thereby.
SECTION 6. Notwithstanding Sections 3 and 4 of this Article VI, if at any time
more than 9.8% of the shares of capital stock of the Corporation has become
concentrated in the hands of a "beneficial owner" (as such term is defined for
purposes of Rule 13d-3, or any successor rule thereto promulgated by the
Securities and Exchange Commission, under the Exchange Act), such beneficial
owner and each of his "affiliates" (as such term is defined on December 1, 1986
in Rule 12b-2 under the Exchange Act) owning any shares of capital stock of the
Corporation shall be deemed to have offered to sell to the Corporation or its
designee, on a date fixed by the Corporation, as specified in the Corporation's
notice of its or its designee's acceptance of such offer of sale, such a number
of shares of capital stock sufficient, in the opinion of the Board of Directors,
to maintain or bring the direct or indirect ownership of shares of capital stock
of the Corporation of such beneficial owner to no more than the Limit. The
price at which the Corporation or its designee may purchase the outstanding
shares of capital stock of the Corporation pursuant to the preceding sentence of
this Section (the "Purchase Price") shall be equal to the closing sales price
for the shares, if then listed on a national securities exchange, or the average
of the closing sales prices for the shares if then listed on more than one
national securities exchange, or if the shares are not then listed on a national
securities exchange, the latest bid quotation for the shares if then traded
over-the-counter, on the last business day immediately preceding the day on
which the Corporation's notice of its acceptance of the beneficial owner's
and/or his affiliates' offer of sale is sent, or, if no such closing sales
prices or quotations are available, then the Purchase Price shall be equal to
the net asset value of such stock (determined on the basis of the fair market
value of the assets of the Corporation) as determined by the Board of Directors
in accordance with the provisions of applicable law. The Purchase Price of any
shares acquired by the Corporation or its designee shall be paid, at the option
of the Corporation, in cash or in the form of an unsecured, subordinated
promissory note of the Corporation or its designee bearing interest and having a
term to maturity (to be not less than five nor more than twenty years)as shall
be determined by the Board of Directors. Payment of the Purchase Price shall be
made at such time and in such manner as may be determined by the Board of
Directors and specified in the notice of acceptance sent to the beneficial owner
and/or his affiliates. From and after the date fixed for purchase by the Board
of Directors and the tender by the Corporation of the Purchase Price therefor,
each as specified in the Corporation's notice of its acceptance of the offer of
sale, the holder of any shares to be so purchased shall cease to be entitled to
any rights as a holder of such shares, excepting only the right to payment of
the Purchase Price fixed as aforesaid.
SECTION 7. Nothing contained in this Article VI or in any other provision
hereof shall limit the authority of the Board of Directors to take such other
action as it deems necessary or advisable to protect the Corporation and the
interests of its stockholders by preservation of the Corporation's status as a
"real estate investment trust" under the Code.
SECTION 8. For purposes of this Article VI only, the term "person" shall
include individuals, corporations, limited partnerships, general partnerships,
joint stock companies or associations, joint ventures, association, consortia,
companies, trusts, banks, trust companies, land trusts, common law trusts,
business trusts and other entities, and governments and agencies and political
subdivisions thereof; provided, however, that such term shall not include this
Corporation or any of its subsidiaries.
SECTION 9. If any provision of this Article VI or any application of any such
provision is determined to be invalid by any federal or state court having
jurisdiction over the issues, the validity of the remaining provisions shall not
be affected and the applications of such provision shall be affected only to the
extent necessary to comply with the determination of such court.
ARTICLE VII. ACQUISITION OF SHARES BY CERTAIN ORGANIZATIONS.
SECTION 1. Whenever it is deemed by the Board of Directors to be prudent in
avoiding
(a) the direct or indirect imposition of a penalty tax on the
Corporation (including the imposition of an entity-level tax on one or
more real estate mortgage investment conduits ("REMICs") or one or more
taxable mortgage pools in which the Corporation has acquired or plans to
acquire an interest) or
(b) the endangerment of the tax status of one or more REMICs or one or
more taxable mortgage pools in which the Corporation has acquired or
plans to acquire an interest, the Board of Directors may require to be
filed with the Corporation a statement or affidavit from any holder or
proposed transferee of capital stock of the Corporation stating whether
the holder or proposed transferee is
(i) the United States, any state or political subdivision
thereof, any possession of the United States, any foreign
government, any international organization, or any agency or
instrumentality of the foregoing, or any other organization that
is exempt from federal income taxation (including taxation under
the unrelated business taxable income provisions of the Code) (a
"Disqualified Organization") or
(ii) a partnership, trust, real estate investment trust,
regulated investment company, or other pass-through entity in
which a Disqualified Organization holds or is permitted to hold
a direct or indirect beneficial interest (a "Pass-Through
Entity").
Any contract for the sale or other transfer of shares of capital stock of the
Corporation shall be subject to this provision. Furthermore, the Board of
Directors shall have the right, but shall not be required, to refuse to transfer
any shares of capital stock of the Corporation purportedly transferred, if
either
(a) a statement or affidavit requested pursuant to this Section 1 has
not been received, or
(b) the proposed transferee is a Disqualified Organization or
Pass-Through Entity.
SECTION 2. Any acquisition of shares of capital stock of the Corporation that
could or would
(a) result in the direct or indirect imposition of a penalty tax on the
Corporation (including the imposition of an entity-level tax on one or
more REMICs or one or more taxable mortgage pools in which the
Corporation has acquired or plans to acquire an interest) or
(b) endanger the tax status of one or more REMICs or one or more taxable
mortgage pools in which the Corporation has acquired or plans to acquire
an interest shall be void ab initio to the fullest extent permitted
under applicable law and the intended transferee of the subject shares
shall be deemed never to have had an interest therein.
If the foregoing provision is determined to be void or invalid by virtue of
any legal decision, statute, rule or regulation, then the transferee of those
shares shall be deemed, at the option of the Corporation, to have acted as agent
on behalf of the Corporation in acquiring those shares and to hold those shares
on behalf of the Corporation.
SECTION 3. Whenever it is deemed by the Board of Directors to be prudent in
avoiding
(a) the direct or indirect imposition of a penalty tax on the
Corporation (including the imposition of an entity-level tax on one or
more REMICs or one or more taxable mortgage pools in which the
Corporation has acquired or plans to acquire an interest) or
(b) the endangerment of the tax status of one or more REMICs or one or
more taxable mortgage pools in which the Corporation has acquired or
plans to acquire an interest, the Corporation may redeem shares of its
capital stock.
Any such redemption shall be conducted in accordance with the procedures set
forth in Section 6 of Article VI.
SECTION 4. Nothing contained in this Article or in any other provision hereof
shall limit the authority of the Board of Directors to take any and all other
action as it in its sole discretion deems necessary or advisable to protect the
Corporation or the interests of its stockholders by avoiding
(a) the direct or indirect imposition of a penalty tax on the
Corporation (including the imposition of an entity-level tax on one or
more REMICs or one or more taxable mortgage pools in which the
Corporation has acquired or plans to acquire an interest) or
(b) the endangerment of the tax status of one or more REMICs or one or
more taxable mortgage pools in which the Corporation has acquired or
plans to acquire an interest.
SECTION 5. If any provision of this Article or any application of any such
provision is determined to be invalid by any federal or state court having
jurisdiction over the issue, the validity of the remaining provisions shall be
affected only to the extent necessary to comply with the determination of that
court.
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 Specimen
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- __________Custodian__________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act___________________________
(State)
UNIF TRF MIN ACT -- __________Custodian (until age______)
(Cust)
______________under Uniform Transfers
(Minor)
to Minors Act________________________
(State)
Additional abbreviations may also 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 ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________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 Corporation with
full power of substitution in the premises.
Dated________________________________
X__________________________________________
Signature(s) Guaranteed
X__________________________________________
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
NOTICE: CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
BY__________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
<PAGE>
EXHIBIT 4(F)
================================================================================
INMC MORTGAGE HOLDINGS, INC.
Issuer
-------------
Depositary
----------------------------
Deposit Agreement
Dated as of _____ __, 1998
----------------------------
Shares of Class __ Preferred Stock
================================================================================
<PAGE>
TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions and Other Provisions of General Application............ 1
SECTION 1.01. Definitions................................................. 1
ARTICLE II
The Depositary Receipts, Deposit of Class __ Preferred Stock.......... 3
SECTION 2.01. Form and Transferability of Depositary Receipts............. 3
SECTION 2.02. Deposit of Class Preferred Stock; Execution and Delivery of
Depositary Receipts........................................ 4
SECTION 2.03. Optional Redemption of Class __ Preferred Stock for Cash.... 5
SECTION 2.04. Registration of Transfers of Depositary Receipts............ 5
SECTION 2.05. Changes Affecting Class __ Preferred Stock and
Reclassifications, Recapitalizations, etc.................. 5
SECTION 2.06. Combinations and Split-ups of Depositary Receipts........... 6
SECTION 2.07. Surrender of Depositary Receipts and Withdrawal of Class
Preferred Stock............................................ 6
SECTION 2.08. Limitations on Execution and Delivery, Transfer, Split-up.
Combination, Surrender, and Exchange of Depositary Receipts. 7
SECTION 2.09. Lost Depositary Receipts, etc................................ 7
SECTION 2.10. Cancellation and Destruction of Surrendered Depositary
Receipts.................................................... 7
SECTION 2.11. Conversion Rights.......................................... 8
ARTICLE III
Certain Obligations of Holders of Depositary Receipts and the Company..... 9
SECTION 3.01. Filing Proofs, Certificates, and Other Information.......... 9
SECTION 3.02. Payment of Fees and Expenses................................ 9
SECTION 3.03. Representations and Warranties.............................. 9
ARTICLE IV
The Class __ Preferred Stock; Notices...................... 10
SECTION 4.01. Cash Distributions.......................................... 10
SECTION 4.02. Distributions Other Than Cash............................... 10
SECTION 4.03. Subscription Rights, Preferences, or Privileges............. 10
SECTION 4.04. Fixing of Record Date for Holders of Depositary Receipts.... 11
SECTION 4.05. Voting Rights............................................... 11
SECTION 4.06. Redemptions................................................. 12
SECTION 4.07. Inspection of Reports....................................... 12
SECTION 4.08. Notices, Reports, and Documents............................. 12
SECTION 4.09. Lists of Depositary Receipt Holders......................... 13
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
SECTION 4.10. Tax and Regulatory Compliance............................... 13
SECTION 4.11. Withholding................................................. 13
ARTICLE V
The Depositary and the Company......................... 13
SECTION 5.01. Maintenance of Offices, Agencies, and Transfer Books by the
Depositary and the Registrar............................... 13
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar, or the Company......... 14
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar, and the Company................................. 14
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary....................................... 15
SECTION 5.05. Indemnification by the Company.............................. 16
SECTION 5.06. Fees, Charges, and Expenses................................. 16
ARTICLE VI
Amendment and Termination........................... 16
SECTION 6.01. Amendment................................................... 16
SECTION 6.02. Termination................................................. 17
ARTICLE VII
Miscellaneous................................. 17
SECTION 7.01. Counterparts................................................ 17
SECTION 7.02. Exclusive Benefits of Parties............................... 17
SECTION 7.03. Invalidity of Provisions.................................... 17
SECTION 7.04. Notices..................................................... 18
SECTION 7.05. Depositary's Agents......................................... 18
SECTION 7.06. Holders of Depositary Receipts Are Parties.................. 18
SECTION 7.07. Governing Law............................................... 18
SECTION 7.08. Inspection of Deposit Agreement and Designating Amendment... 19
SECTION 7.09. Headings.................................................... 19
</TABLE>
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<PAGE>
DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT, dated ____________, 1998 between INMC MORTGAGE
HOLDINGS, INC., a Delaware corporation, ______________________________, a
___________ banking corporation, as Depositary, and all holders from time to
time of Depositary Receipts issued under this Agreement;
WITNESSETH:
WHEREAS, the parties desired to provide for the deposit of shares of the
Company's Class __ Preferred Stock with the Depositary for the purposes set
forth in this Agreement, and for the issuance of the Depositary Receipts
evidencing Depositary Shares representing a fractional interest in the Class __
Preferred Stock to be deposited; and
WHEREAS, the Depositary Receipts are to be substantially in the form of
Exhibit A to this Agreement, with appropriate insertions, modifications, and
omissions;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.
Except as otherwise expressly provided in this Agreement or unless the
context otherwise requires:
(1) defined terms include the plural as well as the singular;
(2) the words "herein," "hereof," "hereto," and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section, or other subdivision; and
(3) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both," not "either A or B but not both").
"Agreement" or "Deposit Agreement" means this agreement, as it may be
amended, modified, or supplemented from time to time.
"Certificate of Incorporation" means the certificate of incorporation
(including any Designating Amendment), as amended from time to time, of the
Company.
"Class __ Preferred Stock" means shares of the Company's ____% Class __
Preferred Stock, $0.01 par value per share, and unless the context requires
otherwise refers to the shares that have been deposited under this Agreement.
"Company" means INMC Mortgage Holdings, Inc., a Delaware corporation, and
its successors.
<PAGE>
"Corporate Office" means the corporate office of the Deposit at which at
any particular time its business relating to this Deposit Agreement is
administered, which is currently located at ______________________________, but
shall also include any other locations it may choose to designate generally or
in connection with any specific event.
"Depositary" means the depositary named in the opening clause of this
Agreement and any successor depositary under this Agreement.
"Depositary Receipt" means a Depositary Receipt issued under this Agreement
to evidence one or more Depositary Shares, whether in definitive or temporary
form, substantially in the form of Exhibit A. Any reference to a Depositary
Receipt is to be treated as a reference also to the underlying Depositary Shares
represented by the Depositary Receipt and the underlying Class __ Preferred
Stock represented by the underlying Depositary Shares. For example, redemption
of a Depositary Receipt is the redemption of the Depositary Shares (evidenced by
the Depositary Receipt) because of the redemption of the Class __ Preferred
Stock share represented by the Depositary Share.
"Depositary Share" means a fractional interest of ____ of a share of Class
__ Preferred Stock deposited with the Depositary and the same proportionate
interest in any other property received by the Depositary relating to that share
of Class __ Preferred Stock and held under this Deposit Agreement, all as
evidenced by the Depositary Receipts. Any reference to a Depositary Share is to
be treated as a reference also to the fractional interest in the underlying
Class __ Preferred Stock represented by the Depositary Share. For example, the
redemption price of a Depositary Share is the portion of the redemption price of
a share of Class __ Preferred Stock that is attributed to the Depositary Share
because it represents a fractional interest in the redeemed share of Class __
Preferred Stock.
"Depositary's Agent" means an agent appointed by the Depositary as provided
in Section 7.05.
"Designating Amendment" means the Designating Amendment filed with the
Secretary of State of the State of Delaware establishing the Class __ Preferred
Stock as a separate class of Preferred Stock of the Company, as it may be
amended from time to time.
"Record Date" means the date fixed pursuant to Section 4.04 with respect to
the applicable event.
"Record holder" or "holder" as applied to a Depositary Receipt means the
person in whose name a Depositary Receipt is registered in the registry book
maintained by the Depositary. When the term is used with reference to an event
for which a Record Date is set, it means the person in whose name the Depositary
Receipt is registered in the registry book as owner on the Record Date.
"Registrar" means the Depositary or any other bank or trust company
subsequently appointed to register ownership and transfers of Depositary
Receipts or the deposited Class __ Preferred Stock, as the case may be. If the
Registrar is not the Depositary, then any functions ordinarily associated with a
Registrar referred to in this Agreement as being undertaken by the Depositary
shall instead be undertaken by the Registrar, and the agreement with the
Registrar shall so reflect.
2
<PAGE>
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission under that Act.
"Transfer Agent" means the Depositary or any other bank or trust company
subsequently appointed to transfer the Depositary Receipts or the deposited
Class __ Preferred Stock, as the case may be. If the Transfer Agent is not the
Depositary, then any functions ordinarily associated with a transfer agent
referred to in this Agreement as being undertaken by the Depositary shall
instead be undertaken by the Transfer Agent, and the agreement with the Transfer
Agent shall so reflect.
ARTICLE II
The Depositary Receipts, Deposit of Class __ Preferred Stock
SECTION 2.01. Form and Transferability of Depositary Receipts. Definitive
Depositary Receipts will be engraved or printed or lithographed with steel-
engraved borders and underlying tint and will be substantially in the form of
EXHIBIT A, with appropriate insertions, modifications, and omissions. Pending
the preparation of definitive Depositary Receipts, temporary Depositary Receipts
may be printed, lithographed, typewritten, mimeographed, or otherwise prepared
substantially of the tenor of the definitive Depositary Receipts in lieu of
which they are to be issued. If temporary Depositary Receipts are issued, the
Company and the Depositary will cause definitive Depositary Receipts to be
prepared without unreasonable delay.
After the preparation of definitive Depositary Receipts, the temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts upon
surrender of the temporary Depositary Receipts at the Corporate Office without
charge to the holder. Upon surrender for cancellation of any temporary
Depositary Receipts, the Depositary will execute and deliver definitive
Depositary Receipts representing the same number of Depositary Shares as
represented by the surrendered temporary Depositary Receipts. The exchange will
be made at the Company's expense. Until so exchanged, the temporary Depositary
Receipts will be entitled to the same benefits under this Agreement as
definitive Depositary Receipts.
Depositary Receipts will be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary. If a Registrar (other
than the Depositary) has been appointed, then the Depositary's execution may be
by a facsimile signature, and the Depositary Receipts will also be countersigned
by manual signature of a duly authorized officer of the Registrar. No Depositary
Receipt will be entitled to any benefits under this Agreement or be valid for
any purpose unless it has been executed as provided in this paragraph. The
Depositary will record on its books each Depositary Receipt that is executed and
delivered.
Except as the Depositary may otherwise determine, Depositary Receipts will
be in denominations of any number of whole Depositary Shares. All Depositary
Receipts will be dated the date of their issuance.
Depositary Receipts may have the legends or recitals or changes required by
the Depositary and not inconsistent with the provisions of this Agreement, or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Class __ Preferred Stock,
the Depositary Shares, or the Depositary Receipts may be listed, or required to
conform with any
3
<PAGE>
ordinary usage, or required to indicate any special limitations or restrictions
to which any particular Depositary Receipt is subject.
Title to any Depositary Receipt that is properly endorsed or accompanied by
a properly executed instrument of transfer or endorsement will be transferable
by delivery with the same effect as in the case of a negotiable instrument.
Until a Depositary Receipt is transferred on the books of the Depositary, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder of the Depositary Receipt as the absolute owner for the purpose of
determining the person entitled to distributions of dividends or other
distributions, to exercise any conversion rights, to any notice, and for all
other purposes.
SECTION 2.02. Deposit of Class __ Preferred Stock; Execution and Delivery
of Depositary Receipts. Concurrently with the execution of this Agreement, the
Company is delivering to the Depositary a certificate or certificates,
registered in the name of the Depositary and evidencing shares of Class __
Preferred Stock. The Company is also delivering to the Depositary a written
order directing the Depositary to execute and deliver to, or upon the written
order of, the persons named in the written order Depositary Receipts for the
Depositary Shares representing the Class __ Preferred Stock. The Depositary
acknowledges receipt of the Class __ Preferred Stock and agrees to hold the
Class __ Preferred Stock in an account with the Depositary. [The Company
appoints the Depositary as the Registrar and transfer agent for the Class __
Preferred Stock deposited under this Agreement, and the Depositary accepts the
appointment and, as such, will reflect changes in the number of shares
(including any fractional shares) of Class __ Preferred Stock held by it by
notation, book-entry, or other appropriate method.]
The Depositary will execute and deliver to, or upon the order of, the
persons named in the written order Depositary Receipts for the number of whole
Depositary Shares representing the Class __ Preferred Stock. The Depositary
Receipts will be registered in the names requested by the persons named in the
written order. The Depositary will execute and deliver the Depositary Receipts
at the Corporate Office, except that, at the request, risk, and expense of any
person requesting it, the delivery may be made at a place designated by that
person. Subject to the terms of this Agreement, each owner of a Depositary Share
is entitled, proportionately, to all the rights, preferences and privileges of
the Class __ Preferred Stock represented by the Depositary Share, including the
dividend, voting, redemption, conversion, and liquidation rights contained in
the Designating Amendment.
Whenever Class __ Preferred Stock is presented for deposit by the Company
the Depositary may require the deposit to be accompanied by an agreement,
assignment, or other instrument satisfactory to the Depositary. This instrument
will provide for the prompt transfer to the Depositary (or its nominee) of any
dividend, right to subscribe for additional Class __ Preferred Stock, or right
to receive other property that any person in whose name the Class __ Preferred
Stock is (or has been) registered may thereafter receive on the Class __
Preferred Stock. In lieu of this instrument, the Depositary may accept an
indemnity or any other agreement it deems satisfactory.
Other than in the case of splits, combinations, or other reclassifications
affecting the Class __ Preferred Stock, or in the case of any dividends in, or
other distributions of, additional Class __ Preferred Stock, no more than the
number of shares constituting the Class __ Preferred Stock set forth in the
Designating Amendment may be deposited under this Agreement.
The Company will deliver to the Depositary from time to time the quantity
of Depositary Receipts the Depositary requests to enable the Depositary to
perform its obligations under this Agreement.
4
<PAGE>
SECTION 2.03. Optional Redemption of Class __ Preferred Stock for Cash.
Whenever the Company redeems shares of Class __ Preferred Stock in accordance
with the Designating Amendment, if fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be selected
pro rata (as nearly as may be practicable without creating fractional Depositary
Shares) or by any other equitable method determined by the Company.
If notice of redemption has been properly given and the Company has then or
previously paid to the Depositary the full redemption price of the Depositary
Shares to be redeemed, the Depositary will redeem the appropriate number of
Depositary Shares and take any other action necessary to carry out the
provisions of the Designating Amendment as it would apply by representation to
the Depositary Shares. Assuming the Company redeems the appropriate shares of
Class __ Preferred Stock, from and after the cash redemption date all dividends
on the shares of Class __ Preferred Stock called for redemption will cease to
accrue, the Depositary Shares called for redemption will no longer be
outstanding, and all rights accruing to a holder from the Depositary Receipts
evidencing those Depositary Shares (except the right to receive the full
redemption price) will terminate. Upon surrender of the appropriate Depositary
Receipts, the Depositary Shares to be redeemed will be redeemed at a cash
redemption price of $______ per Depositary Share. The full redemption price is
the cash redemption price plus any accrued and unpaid dividends to the cash
redemption date and any other money or other property to which record holders
are entitled upon redemption.
If fewer than all of the Depositary Shares evidenced by a Depositary
Receipt are called for redemption, in addition to the full redemption price, the
Depositary will deliver to the holder of the Depositary Receipt upon its
surrender to the Depositary a new Depositary Receipt for the number of
unredeemed Depositary Shares evidenced by the prior Depositary Receipt.
SECTION 2.04. Registration of Transfers of Depositary Receipts. The
Company appoints the Depositary as the Registrar and Transfer Agent for the
Depositary Receipts. The Depositary accepts the appointment and agrees to
register on its books from time to time transfers of Depositary Receipts upon
their surrender by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, together with evidence of the payment of any transfer taxes that
may be required by law. Upon a proper surrender, the Depositary will execute new
Depositary Receipts and deliver them to or upon the order of the person entitled
to them evidencing the same aggregate number of Depositary Shares evidenced by
the Depositary Receipts surrendered.
SECTION 2.05. Changes Affecting Class __ Preferred Stock and
Reclassifications, Recapitalizations, etc. Certain corporate events necessitate
adjustments in the relationship of Depositary Shares to the Class __ Preferred
Stock. These "corporate events" are: any change in par or stated value, split-
up, combination, or any other reclassification of Class __ Preferred Stock, or
upon any recapitalization, reorganization, merger, amalgamation, or
consolidation affecting the Company or to which it is a party, or sale of all or
substantially all of the Company's assets. If any of these corporate events
occur the Company will instruct the Depositary to make adjustments in (a) the
fraction of an interest represented by one Depositary Share in one share of
Class __ Preferred Stock and (b) the ratio of the redemption price per
Depositary Share to the redemption price of a share of Class __ Preferred Stock,
in each case consistent with the provisions of the Designating Amendment and as
necessary to reflect the effects of the corporate event. The Company will also
instruct the Depositary to treat any shares of stock or other securities or
property (including cash) that is received by the Depositary in exchange for, or
upon conversion of, or in respect of, the Class __ Preferred Stock as new
deposited property under this Agreement. The Depositary Receipts then
outstanding will thenceforth have the appropriate proportionate
5
<PAGE>
interests in the new deposited property. Upon the occurrence of a corporate
event the Depositary may, in its discretion, with the approval of the Company,
execute and deliver additional Depositary Receipts, or may call for the
surrender of all outstanding Depositary Receipts to be exchanged for new
Depositary Receipts specifically describing the new deposited property.
Anything in this Agreement to the contrary notwithstanding, holders of
Depositary Receipts will have the right from and after the effective date of any
corporate event to surrender their Depositary Receipts to the Depositary with
instructions to convert, exchange, or surrender the Class __ Preferred Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Class
__ Preferred Stock evidenced by the Depositary Receipts might have been
converted or for which the Class __ Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of the corporate event.
The Company will cause effective provision to be made in the charter of the
resulting or surviving corporation (if other than the Company) for protection of
such rights as may be applicable upon exchange of the Class __ Preferred Stock
for securities or property or cash of the surviving corporation in connection
with the corporate event. The Company will cause any surviving corporation (if
other than the Company) expressly to assume the obligations of the Company under
this Agreement.
SECTION 2.06. Combinations and Split-ups of Depositary Receipts. Upon
surrender of Depositary Receipts at the Corporate Office to effect a split-up or
combination of Depositary Receipts, the Depositary will execute and deliver new
Depositary Receipts in the authorized denominations requested evidencing the
same aggregate number of Depositary Shares that were evidenced by the Depositary
Receipts surrendered.
SECTION 2.07. Surrender of Depositary Receipts and Withdrawal of Class __
Preferred Stock. Any holder of a Depositary Receipt may withdraw any or all of
the [whole] shares of Class __ Preferred Stock the Depositary Receipt represents
(and any money and other property relating to the Depositary Receipt) by
surrendering the Depositary Receipt at the Corporate Office. However, a holder
of a Depositary Receipt may not withdraw any shares Class __ Preferred Stock
that have previously been called for redemption. The Depositary may require that
the Depositary Receipt surrendered be properly endorsed in blank or accompanied
by a properly executed instrument of transfer or endorsement in blank. After
proper surrender, without unreasonable delay, the Depositary will deliver to the
holder, or to the persons designated by the holder, the number of whole [or
fractional] shares of Class __ Preferred Stock (and any money and other
property) represented by the Depositary Receipt surrendered for withdrawal.
Delivery of Class __ Preferred Stock (and any money and other property being
withdrawn) may be made by the delivery of certificates, documents of title, and
other instruments the Depositary deems appropriate. Holders of the whole [or
fractional] shares of Class __ Preferred Stock will not be entitled to re-
deposit the Class __ Preferred Stock with the Depositary or to receive
Depositary Shares therefor.
If a withdrawal is for less than all of the Class __ Preferred Shares
ultimately represented by the tendered Depositary Receipt, then in addition to
the withdrawal proceeds, the Depositary will deliver to the holder, or (subject
to Section 2.04) upon his order, a new Depositary Receipt for the number of
Depositary Shares that represents the amount of Class __ Preferred Shares not
withdrawn.
6
<PAGE>
If the Class __ Preferred Stock and any money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Depositary Receipt being surrendered, the holder will execute and
deliver to the Depositary a written order so directing the Depositary.
The Depositary will deliver the Class __ Preferred Stock (and any money and
other property represented by the surrendered Depositary Receipts) at the
Corporate Office, except that, at the request, risk, and expense of the
surrendering holder delivery may be made at a place designated by the
surrendering holder.
SECTION 2.08. Limitations on Execution and Delivery, Transfer, Split-up.
Combination, Surrender, and Exchange of Depositary Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender, or exchange of any Depositary Receipt (each, an "Issue Event"), the
Depositary, any of the Depositary's Agents, or the Company may require any or
all of the following: (i) payment to it of a sum sufficient for the payment (or,
if the Depositary or the Company has made the payment, the reimbursement to it)
of any tax or other governmental charge on an Issue Event (including any tax or
charge with respect to the Class __ Preferred Stock being deposited or
withdrawn); (ii) proof satisfactory to it of the identity and genuineness of any
signature (or the authority of any signature); and (iii) compliance with
regulations the Depositary or the Company may establish consistent with the
provisions of this Agreement that are required by any securities exchange upon
which the Class __ Preferred Stock, the Depositary Shares, or the Depositary
Receipts may be included for quotation or listed.
The deposit of Class __ Preferred Stock may be refused, the delivery of
Depositary Receipts may be suspended, the transfer of Depositary Receipts may be
refused, and any Issue Event or redemption of outstanding Depositary Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if the action is deemed reasonably 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 any requirement of law or of any
government or governmental body or commission, or under any provision of this
Agreement.
SECTION 2.09. Lost Depositary Receipts, etc. A mutilated Depositary
Receipt may be surrendered and the Depositary will execute and deliver in
exchange for it a new Depositary Receipt of like tenor and amount. If the holder
of a Depositary Receipt provides the Company and the Depositary with (i)
evidence reasonably satisfactory to them of the destruction, loss, or theft of a
Depositary Receipt and of his ownership of the Depositary Receipt and (ii)
reasonable indemnification satisfactory to the Depositary and the Company, then,
in the absence of notice to the Depositary or the Company that the Depositary
Receipt has been acquired by a bona fide purchaser, the Depositary will
authenticate and deliver in lieu of it, a new Depositary Receipt of like tenor
and amount.
SECTION 2.10. Cancellation and Destruction of Surrendered Depositary
Receipts. All Depositary Receipts surrendered to the Depositary or any
Depositary's Agent will be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy cancelled
Depositary Receipts.
7
<PAGE>
Indenture
---------
SECTION 2.11. Conversion Rights. Depositary Receipts may be surrendered
with written instructions to the Depositary to instruct the Company to cause the
conversion of any specified number of whole [or fractional] shares of Class __
Preferred Stock evidenced by the Depositary Receipts into the number of whole
shares or other amount of securities issuable upon conversion of the Class __
Preferred Stock pursuant to the Designating Amendment (those securities, the
"Securities Issuable Upon Conversion"). A holder of a Depositary Receipt may
surrender the Depositary Receipt to the Depositary at the Corporate Office
together with (i) a properly completed notice of conversion (a "Notice of
Conversion") and (ii) any payment in respect of dividends required by the fifth
paragraph of this Section 2.11. The Notice of Conversion shall direct the
Depositary to instruct the Company to cause the conversion of the number of
shares [or fractional shares] of Class __ Preferred Stock specified in the
Notice of Conversion into the appropriate amount of Securities Issuable Upon
Conversion. If a holder delivers to the Depositary for conversion Depositary
Receipts that in the aggregate are convertible into less than the minimum
denomination for Securities Issuable Upon Conversion or into an amount that is
not an appropriate multiple of the denomination for the Securities Issuable Upon
Conversion, then the holder shall receive (in accordance with the last paragraph
of this Section 2.11) cash in lieu of any fractional denomination of Securities
Issuable Upon Conversion that would be due.
Upon receipt by the Depositary of a Depositary Receipt and a properly
completed Notice of Conversion, the Depositary shall, on the date of receipt of
the Notice of Conversion, instruct the Company (i) to cause the conversion of
the appropriate number of shares of Class __ Preferred Stock and (ii) to cause
the delivery to the record holder of the Depositary Receipts of appropriate
certificates evidencing the appropriate amount of Securities Issuable Upon
Conversion, and the amount of money, if any, to be paid in lieu of any
fractional Securities Issuable Upon Conversion.
The Company will cause the delivery to the record holder of (i) a
certificate evidencing the appropriate amount of Securities Issuable Upon
Conversion and (ii) any money or other property to which the record holder is
entitled. In connection with the conversion, the Depositary (i) will deliver
to the record holder a Depositary Receipt evidencing the number of Depositary
Shares, if any, that the record holder has elected not to convert in excess of
the number of Depository Shares representing Class __ Preferred Stock which has
been so converted, (ii) will cancel the Depository Shares evidenced by
Depository Receipts surrendered for conversion, and (iii) will deliver for
cancellation to the transfer agent for the Class __ Preferred Stock the shares
of Class __ Preferred Stock evidenced by the converted Depository Receipts.
If any Class __ Preferred Stock is called by the Company for redemption
or exchange, the Depositary Shares representing that Class __ Preferred Stock
may be converted into Securities Issuable Upon Conversion until and including,
but not after, the close of business on the applicable redemption date or
exchange date. Delivery to the Depositary of Depositary Receipts representing
any Class __ Preferred Stock called for redemption or exchange, together with a
properly completed Notice of Conversion shall be treated as receipt by the
Company of the equivalent conversion notice.
Upon any conversion of Class __ Preferred Stock no allowance,
adjustment, or payment will be made for accrued dividends on the converted Class
__ Preferred Stock, except that if a Depositary Receipt is surrendered for
conversion during the period between the opening of business on any dividend
record date and the close of business on the corresponding dividend payment
date, then the Depositary Receipt must be accompanied by a payment equal to the
dividend that the record holder of that Depositary Receipt is entitled to
receive on the dividend payment date on the underlying Class __ Preferred Stock
to be converted.
Upon the conversion of any shares of Class __ Preferred Stock for which
a Notice of Conversion has been received by the Depositary, all dividends on the
Depositary Shares shall cease to accrue, the Depositary Shares will no longer be
outstanding, all rights of the holder of the Depositary Receipt with respect to
those Depositary Shares (except the right to receive the Securities Issuable
Upon Conversion and any cash payable for any fractional shares and any accrued
dividends on the converted Class __ Preferred Stock) shall terminate, and the
Depositary Receipt evidencing those Depositary Shares will be cancelled in
accordance with Section 2.10.
No fractional shares of Securities Issuable Upon Conversion will be
issuable upon conversion of Class __ Preferred Stock. If, except for the
provisions of this Section 2.11 and the Designating Amendment, any holder of
Depositary Receipts surrendered for conversion would be entitled to a fractional
share of Securities Issuable Upon Conversion, the Company will cause to be
delivered to the holder an amount in cash for the fractional share determined
pursuant to the Designating Amendment.
ARTICLE III
Certain Obligations of Holders of Depositary Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates, and Other Information.
Any holder of a Depositary Receipt may be required from time to time to file a
proof of residence or other information, to execute any certificates, and to
make any representations and warranties that the Depositary or the Company
reasonably deem necessary or proper. Until these requirements are complied with,
the Depositary or the Company may withhold or delay (i) the delivery of any
Depositary Receipt, (ii) the transfer, redemption, or exchange of any Depositary
Receipt, (iii) the withdrawal of Class __ Preferred Stock, (iv) the distribution
of any dividend or other distribution, or (v) the sale of any rights or of the
proceeds thereof.
SECTION 3.02. Payment of Fees and Expenses. Holders of Depositary
Receipts will be obligated to make payments to the Depositary of certain fees
and expenses, as provided in Section 5.06, or to provide evidence reasonably
satisfactory to the Depositary that the fees and expenses have been paid. Until
the payment is made, transfer of any Depositary Receipt or any withdrawal of the
Class __ Preferred Stock or any money or other property evidenced by the
Depositary Receipt may be refused, any dividend or other distribution may be
withheld, and any part or all of the Class __ Preferred Stock or other property
evidenced by the Depositary Receipt may be sold for the account of the holder of
the Depositary Receipt (after attempting by reasonable means to notify the
holder a reasonable time before the sale). Any dividend or other distribution so
withheld and the proceeds of any sale may be applied to any payment of these
fees or expenses. The holder of the Depositary Receipt will remain liable for
any deficiency.
SECTION 3.03. Representations and Warranties. The Company represents
and warrants that the Class __ Preferred Stock deposited by it and each
certificate therefor are valid, and that the Company is duly authorized to make
the deposit. The Company further represents and warrants that the Class __
Preferred Stock, when issued, will be duly authorized, validly issued, fully
paid, and nonassessable.
The Company represents and warrants that the Depositary Receipts, when
issued, will evidence legal and valid interests in the Depositary Shares, and
each Depositary Share will represent a legal and valid ___ fractional interest
in a share of Class __ Preferred Stock.
The Company represents and warrants that the [securities] issuable
upon conversation of the Class __ Preferred Stock, when issued, will be duly
authorized, validly issued, fully paid, and nonassesable.
These representations and warranties will survive the deposit of the
Class __ Preferred Stock and the issuance of Depositary Receipts [and any
conversion of the Class __ Preferred Stock].
ARTICLE IV
The Class __ Preferred Stock; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary receives
any cash dividend or other cash distribution on the Class __ Preferred Stock,
including any cash received upon redemption of any shares of Class __ Preferred
Stock, the Depositary will divide the cash received pro rata, as nearly as
practicable, among the Depositary Receipts, and then distribute it to the
persons who were record holders of Depositary Receipts on the Record Date. If
the Company or the Depositary is required to withhold taxes from any cash
dividend or other cash distribution on the Depositary Receipts held by any
holder, the amount made available for distribution or distributed on these
Depositary Receipts subject to withholding
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Deposit Agreement
will be reduced accordingly. The Depositary will distribute or make available
for distribution only the amount that can be distributed without attributing to
any Depositary Share a fraction of one cent. Any balance not so distributable
will be held by the Depositary (without liability for interest thereon) and will
be added to the next sum received by the Depositary for distribution to record
holders of Depositary Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary
receives any distribution other than cash on the Class __ Preferred Stock, the
Depositary will divide the property received by it pro rata, as nearly as
practicable, among the Depositary Receipts in any manner that the Depositary and
the Company deem equitable and practicable for accomplishing the distribution,
and then distribute it to the persons who were record holders of Depositary
Receipts on the Record Date.
If, in the opinion of the Depositary after consultation with the
Company, a distribution cannot be made proportionately among the 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, the distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt a method that it deems
equitable and practicable for the purpose of effecting the distribution. That
method may be the sale (at public or private sale) of any or all of the
securities or property thus received at places and upon terms it deems proper.
The net proceeds of any sale will be distributed by the Depositary pursuant to
Section 4.01. The Company will not make any distribution of securities or
property to the holders of Depositary Receipts unless the Company has provided
to the Depositary an opinion of counsel stating that the securities or property
have been registered under the Securities Act or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences, or Privileges. If
the Company offers or causes to be offered to the holders of Class __ Preferred
Stock any rights, preferences, or privileges to subscribe for or to purchase any
securities or any rights, preferences, or privileges of any other nature
(collectively, "Rights"), then those Rights will be made available by the
Depositary to the record holders of Depositary Receipts in a manner determined
by the Company (including by issuing warrants representing the Rights to the
record holders). If at the time of issue or offer of the Rights the Company
determines that it is not lawful or feasible to make the Rights available to the
holders of Depositary Receipts (by the issue of warrants or otherwise), or if
instructed to do so by the holders of Depositary Receipts, then the Depositary
will (if so instructed by the Company, and if applicable laws or the terms of
the Rights permit) sell the Rights at public or private sale, at places and upon
terms it deems proper. The net proceeds of any sale will be distributed by the
Depositary to the appropriate record holders of Depositary Receipts pursuant to
Section 4.01. The Company will not make any distribution of Rights unless the
Company has provided to the Depositary an opinion of counsel stating the Rights
have been registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which
any Rights relate is required for holders of Depositary Receipts to be offered
or sold the securities to which the Rights relate, the Company agrees that it
will promptly file a registration statement pursuant to the Securities Act with
respect to the Rights and the underlying securities and use its best efforts to
cause the registration statement to become effective sufficiently in advance of
the expiration of the Rights to enable the holders to exercise the Rights. In no
event will the Depositary make available to the holders of Depositary Receipts
any right, preference, or privilege to subscribe for or to purchase any
securities until the registration statement has become effective, or unless the
offering
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Deposit Agreement
and sale of the securities to the holders are exempt from registration under the
Securities Act and the Company has provided to the Depositary an opinion of
counsel to that effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent, or permit is required for
the Rights to be made available to holders of Depositary Receipts, the Company
agrees to use its best efforts to take the action to obtain the authorization,
consent, or permit sufficiently in advance of the expiration of the Rights to
enable the holders to exercise the Rights.
SECTION 4.04. Fixing of Record Date for Holders of Depositary
Receipts. Certain events necessitate setting a Record Date. Among those events
are: any cash dividend or cash redemption or other cash distribution becomes
payable, any distribution other than cash is made, or any rights, preferences,
or privileges are offered on the Class __ Preferred Stock, or the Depositary
receives notice of (i) any meeting at which holders of the Class __ Preferred
Stock are entitled to vote or of which holders of the Class __ Preferred Stock
are entitled to notice or (ii) any election on the part of the Company to redeem
any shares of the Class __ Preferred Stock. In any of those events the
Depositary shall fix a Record Date for the determination of the record holders
of Depositary Receipts who are entitled to participate with respect to the event
in question. The Record Date set by the Depositary shall be the same date as the
record date fixed by the Company with respect to the Class __ Preferred Stock.
The Depositary will then determine who are the holders of record of the
Depositary Receipts on the Record Date.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Class __ Preferred Stock are entitled to vote, the
Depositary shall promptly mail to the record holders of Depositary Receipts on
the Record Date a notice of the meeting by first class mail.
The Company will provide the Depositary with the actual notice to be
mailed. Each notice shall contain (i) the information that is contained in the
original notice of meeting, (ii) a statement that the holders of Depositary
Receipts at the close of business on the specified record date will be entitled,
subject to any applicable provision of law, to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Class __ Preferred
Stock represented by their respective Depositary Shares, and (iii) a brief
statement of the manner in which the instructions may be given.
Upon the written request of a record holder of a Depositary Receipt,
the Depositary will vote or cause to be voted the amount of Class __ Preferred
Stock evidenced by the Depositary Receipt in accordance with the instructions in
the request. To the extent any instructions request the voting of a fractional
interest of a share of Class __ Preferred Stock, the Depositary will aggregate
all the fractional interests from requests with the same voting instructions and
will vote the number of whole votes resulting from the aggregation in accordance
with the instructions. In the absence of specific instructions from the record
holder of a Depositary Receipt, the Depositary will abstain from voting to the
extent of the Class __ Preferred Stock evidenced by the Depositary Receipt. The
Depositary will not exercise discretion in voting any Class __ Preferred Stock.
SECTION 4.06. Redemptions. Whenever the Company elects to redeem
shares of Class __ Preferred Stock for cash in accordance with the Designating
Amendment, it will give the Depositary not less than 60 days' prior written
notice of the redemption price, the date fixed for redemption (the "cash
redemption date"), and the number of shares of Class __ Preferred Stock to be
redeemed. If there are any, the notice will include the amount of accrued and
unpaid dividends to the cash redemption date.
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The Depositary will determine who are the record holders of the
Depositary Receipts to be redeemed on the Record Date. The Depositary will mail
notice of the redemption of Class __ Preferred Stock and the simultaneous
redemption of the Depositary Shares to those holders of record. The notices will
be sent by first class mail not less than 30 and not more than 60 days prior to
the cash redemption date. The notices will be addressed to the addresses of the
record holders as they appear on the records of the Depositary. Neither failure
to mail any notice to one or more record holders nor any defect in any notice
shall affect the sufficiency of the proceedings for redemption as to other
record holders. The Company will also cause notice of redemption to be published
in a newspaper of general circulation in The City of New York at least once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the cash redemption date.
The Company will provide the Depositary with the actual notice to be
mailed. Each notice will state: the cash redemption date; the cash redemption
price; the number of shares of Class __ Preferred Stock and Depositary Shares to
be redeemed; if fewer than all the Depositary Shares held by any record holder
are to be redeemed, the number of Depositary Shares held by that record holder
to be redeemed; the places where Depositary Receipts are to be surrendered for
payment of the cash redemption price; and that from and after the cash
redemption date dividends on the Class __ Preferred Stock represented by the
Depositary Shares to be redeemed will cease.
SECTION 4.07. Inspection of Reports. The Depositary will make
available for inspection by holders of Depositary Receipts at the Corporate
Office during normal business hours any reports and communications received from
the Company that are made generally available to the holders of the Class __
Preferred Stock. In addition, the Depositary will transmit certain notices and
reports to the holders of Depositary Receipts as provided in this Agreement.
SECTION 4.08. Notices, Reports, and Documents. Certain notices and
reports are required to be furnished by the Company to holders of the Class __
Preferred Stock. These requirements may arise under the law, the Certificate of
Incorporation, or the rules of any national securities exchange upon which the
Class __ Preferred Stock, the Depositary Shares, or the Depositary Receipts are
included for quotation or listed. The Company agrees that it will deliver to the
Depositary, and the Depositary will, promptly after receipt, transmit to the
record holders of Depositary Receipts, at their addresses in the Depositary's
books, copies of all required notices and reports. The delivery of required
notices will be at the Company's expense. In addition, the Depositary will
transmit to the record holders of Depositary Receipts at the Company's expense
any other documents requested by the Company.
If requested by the holder of any Depositary Receipt, the Depositary
will deliver to it a copy of this Deposit Agreement, the form of Depositary
Receipt, the Designating Amendment, and the form of Class __ Preferred Stock.
The Company will provide the Depositary with the number of copies of documents
the Depositary reasonably requests.
SECTION 4.09. Lists of Depositary Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary will furnish to the
Company a list, as of a recent date specified by the Company, of the names,
addresses, and holdings of Depositary Shares of all persons in whose names
Depositary Receipts are registered on the books of the Depositary.
SECTION 4.10. Tax and Regulatory Compliance. The Depositary will be
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding,
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(iii) withholding 31% (or any withholding as may be required at the then
applicable rate) of dividends from eligible holders of Depositary Receipts, (iv)
mailing W-9 forms to new holders of Depositary Receipts without a certified
taxpayer identification number, (v) processing certified W-9 forms, (vi)
preparation and filing of state information returns, and (vii) escheatment
services.
SECTION 4.11. Withholding. Notwithstanding any other provision of
this Agreement, if the Depositary determines that any distribution in property
is subject to any tax that the Depositary is obligated by law to withhold, the
Depositary may dispose of all or a portion of that property in the amounts and
in the manner the Depositary deems necessary and practicable to pay the taxes,
including by public or private sale. The Depositary will distribute the net
proceeds of any sale or the balance of any property after deduction of the taxes
to the holders of Depositary Receipts entitled thereto in proportion to the
number of Depositary Shares held by each of them.
ARTICLE V
The Depositary and the Company
SECTION 5.01. Maintenance of Offices, Agencies, and Transfer Books by
the Depositary and the Registrar. The Depositary will maintain at the Corporate
Office facilities for the execution of Depositary Receipts. The Depositary will
maintain at the Corporate Office and at the offices of any Depositary's Agents
facilities for the delivery, transfer, surrender and exchange, split-up,
combination, and redemption of Depositary Receipts, and deposit and withdrawal
of Class __ Preferred Stock.
The Depositary will keep books at the Corporate Office for the
registration and transfer of Depositary Receipts. The books will be open for
inspection by the record holders of Depositary Receipts at all reasonable times
and as provided by applicable law. The Depositary may close the books, at any
time or from time to time, when deemed expedient by it in connection with the
performance of its duties under this Agreement.
If the Depositary Receipts, or the Depositary Shares, or the Class __
Preferred Stock represented by the Depositary Shares are listed on The New York
Stock Exchange or any other stock exchange, the Depositary may, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of the Depositary Receipts or Depositary Shares in accordance with
the requirements of the listing exchange. The Registrar may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. The Registrar may be the Depositary if so permitted by
the requirements of the listing exchange. If the Depositary Receipts, the
Depositary Shares, or the Class __ Preferred Stock are listed on one or more
other stock exchanges, the Depositary will, at the request and expense of the
Company, arrange the facilities for the delivery, transfer, surrender,
redemption, and exchange of the Depositary Receipts, the Depositary Shares, or
the Class __ Preferred Stock required by law or applicable stock exchange
regulations.
SECTION 5.02. Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar, or the Company. Neither the Depositary,
any Depositary's Agent, any Registrar, nor the Company will incur any liability
to any holder of any Depositary Receipt if their performance under this
Agreement is prevented or delayed by any provision of any present or future law
of the United States of
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America or of any other governmental authority, or by any act of God or war or
other circumstance beyond the control of the relevant party.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar, and the Company. Neither the Depositary, any Depositary's Agent,
any Registrar, nor the Company assumes any obligation or will be subject to any
liability under this Agreement or any Depositary Receipt to holders of
Depositary Receipts other than from acts or omissions arising out of conduct
constituting negligence, bad faith, or willful misconduct in the performance of
their duties under this Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar, nor the
Company will be under any obligation to appear in, prosecute, or defend any
action, suit, or other proceeding that in its reasonable opinion may involve it
in expense or liability, unless indemnity reasonably satisfactory to it against
all expense and liability is furnished as often as may be required.
Neither the Depositary, any Depositary's Agent, any Registrar, nor the
Company will 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 provided
by any holder of a Depositary Receipt or any other person believed by it in good
faith to be competent to give the information. The Depositary, any Depositary's
Agent, any Registrar, and the Company may each rely and will each be protected
in acting upon any written notice, request, direction, or other document
believed by it in good faith to be genuine and to have been signed or presented
by the proper party or parties.
If the Depositary receives conflicting claims, requests, or
instructions from any holders of Depositary Receipts, on the one hand, and the
Company, on the other hand, the Depositary will be entitled to act on the
claims, requests, or instructions received from the Company.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell, or deal in any class
of securities of the Company and its affiliates and in Depositary Receipts or
Depositary Shares, or become pecuniarily interested in any transaction in which
the Company or its affiliates may be interested, or contract with or lend money
to or otherwise act as fully or as freely as if it were not the Depositary or
the Depositary's Agent. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
Neither the Depositary nor any Depositary's Agent is an "issuer" of
the securities under the federal securities laws or applicable state securities
laws. The Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the Class __ Preferred Stock. The Depositary agrees
to comply with all information reporting and withholding requirements applicable
to it under law or this Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees, or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Class __ Preferred Stock, the
Depositary Shares, the Depositary Receipts (except for its countersignature),
the registration statement
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pursuant to which the Shares are registered under the Securities Act, or any
other instruments relating to this Agreement, or as to the correctness of any
statement made therein or herein. However, the Depositary is responsible for its
representations in this Agreement and for the validity of any action taken or
required to be taken by the Depositary in connection with this Agreement.
The Company agrees that it will register the Class __ Preferred Stock
and the Depositary Shares in accordance with applicable securities laws.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may resign as Depositary at any time by
notice of its election to do so delivered to the Company. The resignation will
take effect upon the appointment of a successor depositary and its acceptance of
the appointment.
The Depositary may be removed by the Company at any time by notice of
removal delivered to the Depositary. The removal will take effect upon the
appointment of a successor depositary and its acceptance of the appointment.
If the Depositary resigns or is removed, the Company will, within 60
days after the delivery of the notice of resignation or removal, as the case may
be, appoint a successor depositary. The successor depositary 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 $50,000,000. If a successor
depositary has not been appointed in 60 days, the resigning Depositary may
petition a court of competent jurisdiction to appoint a successor depositary.
Every successor depositary will execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment under this
Agreement, and will then immediately become fully vested with all the rights,
powers, duties, and obligations of its predecessor, and for all purposes will be
the Depositary under this Agreement.
The predecessor, upon the written request of the Company, will
promptly execute and deliver an instrument transferring to its successor all
rights and powers of the predecessor under this Agreement, will duly assign,
transfer, and deliver all right, title, and interest in the Class __ Preferred
Stock and any moneys or property held under this Agreement to its successor, and
will deliver to its successor a list of the record holders of all outstanding
Depositary Receipts. Any successor depositary will promptly mail notice of its
appointment to the record holders of Depositary Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated, or converted, or any corporation to which all or a substantial
part of the corporate trust or shareholder services business of the Depositary
may be transferred, will be a successor depositary without the execution or
filing of any document or any further act. That successor depositary may execute
the Depositary Receipts either in the name of the predecessor depositary or in
the name of the successor depositary.
SECTION 5.05. Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent, and any Registrar against, and
hold each of them harmless from, any liability, costs, and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent, or Registrar, respectively, under this
Agreement and the Depositary Receipts, except for any liability arising out of
negligence, willful misconduct, or bad faith on the part of any of them. The
obligations of the Company set forth in this Section 5.05 will
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survive any succession of any Depositary, Registrar, or Depositary's Agent and
termination of this Agreement.
SECTION 5.06. Fees, Charges, and Expenses. No charges and expenses
of the Depositary or any Depositary's Agent will be payable by any person,
except as provided in this Section 5.06. The Company will pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Agreement. The Company will also pay all fees and expenses of the Depositary in
connection with the initial deposit of the Class __ Preferred Stock and the
initial issuance of the Depositary Receipts, any redemption of the Class __
Preferred Stock at the option of the Company, and all withdrawals of the Class
__ Preferred Stock by holders of Depositary Shares.
If a holder of Depositary Receipts requests the Depositary to perform
duties not required under this Agreement, the Depositary will notify the holder
of the cost to perform as requested. The holder will be liable for the charges
and expenses related to the performance if it then elects to have the Depositary
perform. All other fees and expenses of the Depositary and any Depositary's
Agent and of any Registrar (including, in each case, fees and expenses of
counsel) incident to the performance of their respective obligations under this
Agreement will be promptly paid as previously agreed between the Depositary and
the Company. The Depositary will present its statement for fees and expenses to
the Company every month or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Depositary Receipts and any
provision of this Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable. No amendment that (i) materially and adversely
alters the rights of the holders of Depositary Receipts or (ii) would be
materially and adversely inconsistent with the rights of the Class __ Preferred
Stock pursuant to the Certificate of Incorporation will be effective unless the
amendment has been approved by the holders of at least two thirds of the
Depositary Shares then outstanding. No amendment may impair the right of any
holder of any Depositary Shares to surrender a Depositary Receipt with
instructions to the Depositary to deliver to the holder the Class __ Preferred
Stock (and any money and other property represented thereby), except in order to
comply with mandatory provisions of applicable law. Every holder of an
outstanding Depositary Receipt at the time any amendment becomes effective, by
continuing to hold the Depositary Receipt, consents and agrees to the amendment
and to be bound by this Agreement as amended.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company upon not less than 30 days' prior written notice to the Depositary if
(i) the termination is necessary to preserve the Company's status as a real
estate investment trust under the Internal Revenue Code of 1986, as amended (or
any successor) or (ii) the holders of a majority of the Depositary Shares then
outstanding consent to the termination. Upon termination the Depositary will
deliver or make available to each holder of a Depositary Receipt, upon surrender
of the Depositary Receipt, the number of whole or fractional shares of Class
__ Preferred Stock together with any other property held by the Depositary
evidenced by the Depositary Receipt. If any fractional shares of Class __
Preferred Stock would otherwise be due to the holder of a Depositary Receipt,
the holder will receive cash in lieu of the fractional share as provided in the
Designating Amendment.
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Deposit Agreement
This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares have been redeemed pursuant to Section 2.03,
(ii) [each share of Class __ Preferred Stock has been converted or exchanged as
described in Section 2.11, or (iii)] a final distribution on the Class __
Preferred Stock has been made in connection with any liquidation, dissolution,
or winding up of the Company, and the distribution has been distributed to the
holders of Depositary Receipts entitled thereto.
Upon the termination of this Agreement, the Company will be discharged
from all obligations under this Agreement except for its obligations to the
Depositary, any Depositary's Agent, and any Registrar under Section 5.05 and
Section 5.06.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Agreement may be executed in any
number of counterparts, and by each of the parties on separate counterparts,
each of which counterpart, when so executed and delivered, will be treated as an
original, but all counterparts taken together will constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile transmission will be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 7.02. Exclusive Benefits of Parties. This Agreement is for
the exclusive benefit of the parties and their respective successors, and will
not give any legal or equitable right, remedy, or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. If any one or more of the
provisions contained in this Agreement or in the Depositary Receipts is or
becomes invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions in this Agreement and
the Depositary Receipts shall in no way be affected.
SECTION 7.04. Notices. All notices to be given to the Company will
be in writing and will be duly given if personally delivered or sent by first
class mail, or by telegram or facsimile transmission confirmed by letter,
addressed to the Company at:
INMC Mortgage Holdings, Inc.
155 North Lake Avenue
Pasadena, CA 91101
Attention: ________________________
Telephone No. ________________________
Fax No. ________________________
or at any other address of which the Company will have notified the Depositary
in writing.
Any notices to be given to the Depositary will be in writing and will
be duly given if personally delivered or sent by first class mail, or by
telegram or facsimile transmission confirmed by letter, addressed to the
Depositary at the Corporate Office.
16
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Any notices given to any record holder of a Depositary Receipt shall
be in writing and will be duly given if personally delivered or sent by first
class mail, or by telegram or facsimile transmission confirmed by letter,
addressed to the record holder at the address of the record holder as it appears
on the books of the Depositary or, if the holder has filed with the Depositary
in a timely manner a written request that notices intended for the holder be
mailed to some other address, at the address designated in the request.
Delivery of a notice sent by first class mail or by telegram or
facsimile transmission will be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission ) is deposited, postage prepaid, in a post office
letter box, and will be conclusively presumed to have been received on the
second business day after being so posted in the case of notice sent by mail,
and on the day sent (or the next business day if that day is not a business day)
in the case of notice by telegram or facsimile transmission. The Depositary or
the Company may, however, act upon any telegram or facsimile transmission
received by it from the other or from any holder of a Depositary Receipt,
notwithstanding that the telegram or facsimile transmission has not subsequently
been confirmed by letter.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Agreement, and may at any time appoint additional
Depositary's Agents, and vary or terminate the appointment of the Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Depositary Receipts Are Parties. The
holders of Depositary Receipts from time to time become parties to this
Agreement and will be bound by all of the terms and conditions of this Agreement
and of the Depositary Receipts by acceptance of delivery of the Depository
Receipt.
SECTION 7.07. Governing Law. This Agreement and the Depositary
Receipts and all rights, duties, and obligations hereunder and thereunder will
be governed by, and construed in accordance with, the law of the State of New
York applicable to agreements made and to be performed in New York State.
SECTION 7.08. Inspection of Deposit Agreement and Designating
Amendment. Copies of this Agreement and the Designating Amendment will be filed
with the Depositary and the Depositary's Agents and will be open to inspection
during business hours at the Corporate Office and the respective offices of any
Depositary's Agents by any holder of a Depositary Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Agreement have been inserted for convenience only and are not to be
regarded as a part of this Agreement or to have any bearing upon the meaning or
interpretation of any provision contained in this Agreement.
17
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written and all holders of Depositary Receipts
will become parties to this Agreement by and upon acceptance by them of delivery
of Depositary Receipts.
INMC MORTGAGE HOLDINGS, INC.
By:___________________________________________
Authorized Officer
Attest:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
By:___________________________________________
Authorized Signatory
Attest:
18
<PAGE>
The Company will furnish to any holder of this Certificate, on request
and without charge, a full statement of the information with respect to the
designations and any preferences, conversion, and other rights, voting powers,
restrictions, limitations as to dividends and other distributions,
qualifications, and terms and conditions or redemption or the stock of each
class which the Company has authority to issue and, if the Company is authorized
to issue any preferred or special class in series, (i) the differences in the
relative rights and preferences between the shares of each series to the extent
set, and (ii) the authority of the Board of Directors to set the rights and
preferences of subsequent series. This summary does not purport to be complete
and is subject to and qualified in its entirety by reference to the Certificate
of Incorporation of the Company (the "Certificate of Incorporation"), a copy of
which will be sent without charge to each stockholder who requests one. The
request should be made to the Secretary of the Company at its principal office
or to the Depositary.
The Depositary Shares evidenced by this Depositary Receipt are subject
to restrictions on ownership and transfer for the purpose of the Company's
maintenance of its status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended. Except as otherwise provided pursuant to the
Certificate of Incorporation of the Company, no person may beneficially own or
constructively own Depositary Shares representing Class __ Preferred Stock in
excess of 9.8% of the outstanding Class __ Preferred Stock, with certain further
restrictions and exceptions set forth in the Certificate of Incorporation. Any
person who attempts to beneficially own or constructively own Depositary Shares
representing Class __ Preferred Stock in excess of the above limitation must
immediately notify the Company. All capitalized terms in this legend have the
meanings set forth in the Certificate of Incorporation. Transfers in violation
of the restrictions described above will be void ab initio.
[FORM OF FACE OF DEPOSITARY RECEIPT]
DRC-
CERTIFICATE FOR NOT MORE THAN __________ DEPOSITARY SHARES
CUSIP
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING ____ OF A SHARE OF
______% CLASS __ PREFERRED STOCK, PAR VALUE $0.01 PER SHARE, OF
INMC MORTGAGE HOLDINGS, INC.
(a Delaware corporation)
_________________________________, as depositary (the "Depositary"),
hereby certifies that is the registered owner of
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing ____
of one share of _____% Class __ Preferred Stock, par value $0.01 per share (the
"Stock"), of INMC Mortgage Holdings, Inc., a Delaware corporation (the
"Company"), on deposit with the Depositary, subject to the terms and entitled to
the benefits of the Deposit Agreement dated as of _____________ (the
"Deposit Agreement"), among the Company, the Depositary, and the holders from
time to time of Depositary Receipts for Depositary Shares. By accepting this
Depositary Receipt, the holder becomes a party to and agrees to be bound by all
of the provisions of the Deposit Agreement. This Depositary Receipt will not
be valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it has been executed by the Depositary by the manual
or facsimile signature of a duly authorized officer and, if a Registrar for the
Depositary Receipts (other than the Depositary) has been appointed, by the
manual signature of a duly authorized officer of the Registrar.
Dated:
[COUNTERSIGNED: _______________________________
AS DEPOSITARY, TRANSFER AGENT,
AND REGISTRAR
___________________________] By: ___________________________________
By Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEPOSITARY RECEIPT]
INMC MORTGAGE HOLDINGS, INC.
INMC MORTGAGE HOLDINGS, INC. WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED
HOLDER OF A DEPOSITARY RECEIPT WHO REQUESTS ONE A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE DESIGNATING AMENDMENT WITH RESPECT TO THE CLASS __ PREFERRED
STOCK OF INMC MORTGAGE HOLDINGS, INC. ANY REQUEST SHOULD BE MADE TO THE
SECRETARY OF THE COMPANY OR TO THE DEPOSITARY NAMED ON THE FACE OF THIS
DEPOSITARY RECEIPT.
________________________________________________
The following abbreviations when used in the instructions on the face of this
receipt will be construed as though they were written out in full according to
applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - ______Custodian _______
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship --------------------------
and not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
----------
For value received, ______________________ hereby sell(s), assign(s) and
transfer(s) 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
--------------------------
Depositary 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.
Dated
--------------------------- ---------------------------------------
NOTICE: The signature to the assignment
must correspond with the name as written
upon the face of this Depositary Receipt
in every particular, without alteration
or enlargement or any change whatever.
<PAGE>
EXHIBIT 5.0
May 15, 1998
INMC Mortgage Holdings, Inc.
155 North Lake Avenue
Pasadena, California 91101
Re: $500,000,000 Aggregate Offering Price of
Securities of INMC Mortgage Holdings, Inc.
------------------------------------------
Ladies and Gentlemen:
We are acting as counsel for INMC Mortgage Holdings, Inc., a Delaware
corporation (the "Company"), in connection with post-effective amendment no. 1
to the registration statement on Form S-3 no. 333-41329 (the "Registration
Statement") being filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the offering from time to time by the Company of up to
$500,000,000 aggregate offering price of (i) an indeterminate amount of debt
securities (the "Debt Securities") to be issued pursuant to an indenture (the
"Indenture"), between the Company and Chase Manhattan Bank and Trust Company,
National Association, as trustee (the "Trustee"), or (ii) an indeterminate
number of shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), or (iii) an indeterminate number of depositary shares representing
Preferred Stock (the "Depositary Shares") to be issued pursuant to a depositary
agreement (the "Depositary Agreement"), between the Company and the depositary
agent to be named therein (the "Depositary Agent"), or (iv) an indeterminate
number of shares of common stock, par value $.01 per share (the "Common Stock,"
and together with the Debt Securities, the Preferred Stock, and the Depositary
Shares, the "Securities"), or (v) any combination of the Securities. The
Registration Statement provides that the Securities may be offered in separate
series, in amounts, at prices, and on terms to be set forth in one or more
prospectus supplements to the prospectus contained in the Registration Statement
(collectively, the "Prospectus").
This opinion is being delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise, identified to our satisfaction of
(i) the Registration Statement relating to the Securities, (ii) the Certificate
of Incorporation of the Company (the "Certificate of Incorporation") as
currently in effect, (iii) the Bylaws of the Company as currently in effect,
(iv) a specimen of the certificate to be used to represent the Common Stock, (v)
a specimen of the depositary receipt certificate (the "Depositary Receipt") to
be
<PAGE>
used to represent the Depositary Shares, (vi) the form of the Indenture, and
(vii) resolutions of the Board of Directors of the Company relating to the
issuance of the Securities and the filing of the Registration Statement. We have
also examined originals or copies, certified or otherwise, identified to our
satisfaction of such records of the Company and such agreements, certificates of
public officials, certificates of officers or representatives of the Company and
others, and such other documents, certificates, and records, as we have deemed
necessary or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein, we have relied upon oral or written
statements and representations of officers or representatives of the Company and
others.
We are admitted to practice in the State of New York. We express no
opinion herein as to the laws of any jurisdiction other than the laws of the
United States of America, the corporate laws of the State of Delaware, and the
State of New York.
Based upon and subject to the foregoing, we are of the opinion that, as of
the date hereof:
1. The Indenture has been duly authorized and, when duly executed and
delivered by the Company (and assuming due authorization, execution, and
delivery by the Trustee), will be the legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
2. The Debt Securities have been duly authorized by the Company and, when
the Debt Securities have been duly established by the Indenture, duly
authenticated by the Trustee, and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and provisions of
the Indenture and as contemplated by the Registration Statement and the
Prospectus, the Debt Securities will constitute legally valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
3. Assuming that (i) the Annual Meeting of Stockholders of the Company
scheduled for May 19, 1998 (the "Annual Meeting") is duly held, (ii) a majority
of the outstanding shares of the common stock of the Company are duly voted in
favor of PROPOSAL FOUR in the proxy statement (the "Proxy") for the Annual
Meeting, and (iii) the amendment to the Certificate of Incorporation in the form
of Appendix B to the Proxy is duly filed with the Secretary of State of the
State of Delaware (collectively, the "Completion of Authorizations"), the
Preferred Stock will have been duly authorized, and upon issuance, delivery, and
payment therefor in the manner contemplated by, and consistent with the terms
set forth in, the Registration Statement and the Prospectus (including the
filing of a
2
<PAGE>
Designating Amendment (as defined in the Prospectus) amending the Certificate of
Incorporation), will be validly issued, fully paid, and nonassessable.
4. Assuming the Completion of Authorizations, the Depositary Shares will
have been duly authorized, and upon issuance, delivery, and payment therefor in
the manner contemplated by the Registration Statement and the Prospectus
(including the due execution and delivery of the Depositary Receipts by the
Depositary Agent in accordance with the Depositary Agreement, and the due
issuance of the underlying Preferred Stock) will be validly issued and will
entitle their registered holders to the rights specified in the Depositary
Agreement.
5. The Common Stock has been duly authorized, and upon issuance, delivery,
and payment therefor in the manner contemplated by the Registration Statement
and the Prospectus, will be validly issued, fully paid, and nonassessable.
The opinions set forth in paragraphs 1, 2, and 4 above are subject to the
following exceptions, limitations, and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity (whether enforcement
is considered in a proceeding in equity or law); (iii) the requirements that a
claim with respect to any Debt Securities payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of such claim)
be converted into United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law; and (iv) the effect of any statute,
law, judgment, decree, order, regulation, or rule of any court or governmental
authority to limit, delay, or prohibit the making of payments in a foreign or
composite currency or the making of payments outside the United States.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement and to the reference to our firm under
the caption "Legal Matters" in the Registration Statement. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Brown & Wood LLP
3
<PAGE>
EXHIBIT 23(A)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated February 27, 1998, accompanying the
consolidated financial statements and schedule of INMC Mortgage Holdings, Inc.
and Subsidiaries and the consolidated financial statements of IndyMac, Inc.
and Subsidiary included in the Annual Report of INMC Mortgage Holdings, Inc.
on Form 10K for the year ended December 31, 1997. We hereby consent to the
incorporation by reference of said reports in this Post-Effective Amendment
No. 1 to Form S-3 Registration Statement (File No. 333-41329) of INMC Mortgage
Holdings, Inc. and to the use of our name as it appears under the caption
"Experts".
Los Angeles, California
May 18, 1998
