<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 21, 1999
REGISTRATION NO. 333-65837
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
------------------------
AMENDMENT NO. 5
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FIDELITY NATIONAL FINANCIAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 86-0498599
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
17911 VON KARMAN AVENUE
IRVINE, CALIFORNIA 92614
(949) 622-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
M'LISS JONES KANE
SENIOR VICE PRESIDENT AND CORPORATE COUNSEL
FIDELITY NATIONAL FINANCIAL, INC.
17911 VON KARMAN AVENUE, SUITE 300
IRVINE, CALIFORNIA 92614
(949) 622-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
C. CRAIG CARLSON, ESQ.
J. MICHAEL VAUGHN, ESQ.
STRADLING YOCCA CARLSON & RAUTH
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660
(949) 725-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this Registration Statement becomes effective, 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, 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. [ ]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED BE REGISTERED(1) PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE(2)
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
Debt Securities(3)...................... --
- ----------------------------------------------------------------------------------------------------------------------------
Preferred Stock(4)..................... --
- ----------------------------------------------------------------------------------------------------------------------------
Depositary Shares(4)(5)................ --
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Common Stock(4)........................ --
- ----------------------------------------------------------------------------------------------------------------------------
Total............................... $400,000,000 -- $400,000,000 $108,400
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Not specified as to each class of securities to be registered pursuant to
General Introduction II.D of Form S-3. Securities registered hereby may
be offered for U.S. dollars or the equivalent thereof in one or more
foreign currencies or units of two or more foreign currencies or
composite currencies. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(2) Estimated in accordance with Rule 457(o) solely for the purpose of
calculating the registration fee. $55,600 of the Registration Fee was
previously paid.
(3) Debt Securities include senior and subordinated Debt Securities. If any
Debt Securities are issued at an original issue discount, then such
greater amount as may be sold for an aggregate initial offering price of
up to the proposed maximum aggregate offering price.
(4) Includes such indeterminate number of shares of Preferred Stock and
Common Stock, and such indeterminate number of Depositary Shares, as may
be issued from time to time at indeterminate prices, or as may be issued
upon conversion or exchange of Debt Securities, Preferred Stock or
Depositary Shares, as the case may be (for which, in any such conversion
or exchange, no separate consideration will be received by the
Registrant).
(5) Represent fractional interests in shares of Preferred Stock registered
hereby.
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
SUBJECT TO COMPLETION, DATED DECEMBER 20, 1999
PROSPECTUS
$400,000,000
FIDELITY NATIONAL LOGO
FIDELITY NATIONAL FINANCIAL, INC.
DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY SHARES AND COMMON STOCK
------------------------
Fidelity National Financial, Inc. may from time to time offer and sell debt
securities, shares of preferred stock, depositary shares representing fractional
interests in shares of preferred stock, and shares of common stock for an
aggregate initial public offering price of up to $400,000,000. We will provide
the specific terms for each of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
------------------------
Our common stock is traded on the New York Stock Exchange under the symbol
"FNF".
------------------------
The securities we may offer involve a high degree of risk. The risks
associated with an investment in our company, as well as with the particular
types of securities, will be described in the prospectus supplement.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
------------------------
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
------------------------
The date of this prospectus is December , 1999
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333-65837) that we
filed with the SEC using a "shelf" registration process. Under this shelf
process, we may offer from time to time any combination of the securities
described in this prospectus, either separately or in units, in one or more
offerings up to a total dollar amount of $400,000,000. This prospectus provides
you with a general description of those securities. Each time we sell
securities, we will provide a prospectus supplement that will describe the
specific amounts, prices and terms of the securities that we offer. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read this prospectus and the applicable prospectus
supplement together with the additional information described under the heading
"Where You Can Find More Information."
This prospectus does not contain all of the information in the registration
statement. We have omitted certain parts of the registration statement as
permitted by the rules and regulations of the SEC. You may inspect and copy the
registration statement, including the exhibits, at the SEC's web site or at the
SEC's offices mentioned under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of the New York
Stock Exchange. For further information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus and information that we file subsequently
with the SEC will automatically update this prospectus. We incorporate by
reference the documents listed below (SEC File No. 1-9396) and any filings we
make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 after the initial filing of the registration statement that
contains this prospectus and prior to the time that we sell all the securities
offered by this prospectus:
- - Annual Report on Form 10-K for the year ended December 31, 1998;
- - Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999, June 30,
1999 and September 30, 1999;
- - Current Reports on Form 8-K dated March 19, 1999 and August 1, 1999; and
2
<PAGE> 4
- - The description of our Common Stock which is contained in our Registration
Statement on Form 8-A filed on February 4, 1992 under the Exchange Act,
including any amendment or reports filed for the purpose of updating such
description.
You may request a copy of these filings, other than exhibits, at no cost by
contacting us at the following address:
Corporate Secretary
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
(949) 622-5000
You should rely only on the information incorporated by reference or set
forth in this prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with different information. We may only
use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering these securities in states where the offer is
permitted. You should not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date other than the dates
on the front of those documents.
FORWARD LOOKING INFORMATION
This prospectus includes forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. This Act provides a "safe
harbor" for forward-looking statements to encourage companies to provide
prospective information about themselves so long as they identify these
statements as forward looking and provide meaningful cautionary statements
identifying important factors that could cause actual results to differ from the
prospective results. All statements, other than statements of historical fact we
make in this prospectus, prospectus supplement or in any document incorporated
by reference are forward-looking and may be identified by words such as
"anticipate," "believe," "estimate" and similar expressions. Because such
forward-looking statements involve risks and uncertainties, there are important
factors that could cause actual results to differ materially from those
expressed or implied by such forward-looking statements, including:
- changes in the interest rate environment;
- decreases in activity in the real estate market;
- changes in general economic conditions, either nationally or in the
regions in which we operate;
- increases in competitive pressure in the title insurance and other title
and real estate related services industries; and
- legislative or regulatory changes that adversely affect our operations.
These and other factors are discussed in our Annual Report on Form 10-K for
the year ended December 31, 1998, as well as the section entitled "Risk Factors"
that appears in the prospectus supplement accompanying this prospectus.
3
<PAGE> 5
FIDELITY NATIONAL FINANCIAL, INC.
Fidelity National Financial, Inc. is one of the largest national title
insurance underwriters and also provides diversified real estate services. We
are engaged in doing business in 49 states, the District of Columbia, Mexico,
Puerto Rico and the Virgin Islands. Through our subsidiaries, we issue title
insurance policies and perform other title-related services such as escrow,
collection and trust activities, real estate information and technology
services, trustee sale guarantees, home warranty insurance, credit reporting,
attorney services, flood certification, real estate tax services, reconveyances,
recordings, foreclosure publishing and posting services and exchange
intermediary services in connection with real estate transactions. Title
insurance and related services are provided through our direct operations and
otherwise through independent title insurance agents who issue title policies on
behalf of our underwriting subsidiaries. Title insurance is generally accepted
as the most efficient means of determining title to, and the priority of
interests in, real estate in nearly all parts of the United States. Today,
virtually all real property mortgage lenders require their borrowers to obtain a
title insurance policy at the time a mortgage loan is made or to allow the sale
of loans in the secondary market.
Our principal underwriting subsidiaries are Fidelity National Title
Insurance Company, Fidelity National Title Insurance Company of New York,
Nations Title Insurance of New York Inc., and Alamo Title Insurance. We also
operate through our underwritten title companies, a national network of agents
and our real estate-related ancillary service companies. Additionally, our
subsidiary FNF Capital, Inc., originates, funds, purchases, sells, securitizes
and services equipment leases for a broad range of businesses.
During 1996 and 1997, we expanded our platform of title and real estate
transactional services and increased our market share in the commercial and
agency segments of the title industry. Through our proprietary technology we
offer fully integrated software to our customers in the real estate closing
business, creating a competitive advantage through increased productivity and
accuracy.
Fidelity has long recognized the perceived volatility of the title
insurance industry as it relates to interest rates and other factors affecting
the real estate industry. As a result, we will continue to consider strategic
opportunities in businesses that are less interest rate sensitive than the title
industry.
4
<PAGE> 6
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the proceeds
we receive from the sale of the offered securities, after paying our expenses
related to the offering, will be added to our general funds and may be used:
- to meet our working capital requirements;
- to repurchase or redeem our outstanding debt securities;
- to refinance or repay our outstanding borrowings;
- to make investments in or loans to our subsidiaries;
- to finance acquisitions; and
- for other general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of Fidelity for each of the periods
indicated were as follows:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
- -------------------------------- -------------
1994 1995 1996 1997 1998 1998 1999
- ---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C>
2.1 1.5 2.7 3.6 5.9 7.0 6.9
</TABLE>
These computations include Fidelity, and except as otherwise noted,
Fidelity's subsidiaries and 50% or less owned companies. For these ratios,
"earnings" is determined by adding "fixed charges" (excluding interest
capitalized), income taxes, minority common stockholders' equity in net income
and amortization of interest capitalized to income from continuing operations
after eliminating equity in undistributed earnings and adding back losses of
companies in which at least 20% but less than 50% stock is owned. For this
purpose, "fixed charges" consists of (i) interest on all debt and amortization
of debt discount and expense, (ii) interest capitalized, and (iii) an interest
factor attributable to rentals.
Fidelity's ratios of earnings to combined fixed charges and preferred stock
dividends for the periods indicated above are the same as the ratios of earnings
to fixed charges, because Fidelity had no shares of preferred stock outstanding
during the periods indicated and currently has no such shares outstanding.
5
<PAGE> 7
CERTAIN FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The following table sets forth selected financial data of Fidelity as of
and for each of the years in the three-year period ended December 31, 1998 and
as of and for the nine months ended September 30, 1998 and 1999. The following
selected consolidated financial data should be read in conjunction with our
Consolidated Financial Statements and the Notes thereto incorporated by
reference herein. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------- ---------------------
1996 1997 1998 1998 1999
-------- -------- ---------- -------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA:
Total revenue.............................. $734,795 $863,059 $1,288,465 $913,070 $1,043,930
Total expenses........................... 686,569 777,456 1,113,331 780,610 939,972
-------- -------- ---------- -------- ----------
Earnings before income taxes and
extraordinary item.................... 48,226 85,603 175,134 132,460 103,958
Income tax expense....................... 18,985 36,595 69,442 55,540 41,843
-------- -------- ---------- -------- ----------
Earnings before extraordinary item....... 29,241 49,008 105,692 76,920 62,115
Extraordinary item....................... -- (1,700) -- -- --
-------- -------- ---------- -------- ----------
Net earnings............................. $ 29,241 $ 47,308 $ 105,692 $ 76,920 $ 62,115
======== ======== ========== ======== ==========
PER SHARE AND OTHER DATA:
Basic net earnings....................... $ 29,241 $ 47,308 $ 105,692 $ 76,920 $ 62,115
======== ======== ========== ======== ==========
Basic earnings per share before
extraordinary item.................... $ 1.43 $ 2.10 $ 3.79 $ 2.78 $ 2.05
Extraordinary item....................... -- (0.07) -- -- --
-------- -------- ---------- -------- ----------
Basic net earnings per share............. $ 1.43 $ 2.03 $ 3.79 $ 2.78 $ 2.05
======== ======== ========== ======== ==========
Weighted average shares outstanding,
basic basis........................... 20,426 23,355 27,921 27,653 30,353
Diluted net earnings..................... $ 32,437 $ 50,450 $ 108,155 $ 78,803 $ 62,378
======== ======== ========== ======== ==========
Diluted net earnings per share before
extraordinary item.................... $ 1.23 $ 1.76 $ 3.23 $ 2.36 $ 1.95
Extraordinary item....................... -- (0.06) -- -- --
-------- -------- ---------- -------- ----------
Diluted net earnings per share........... $ 1.23 $ 1.70 $ 3.23 $ 2.36 $ 1.95
======== ======== ========== ======== ==========
Weighted average shares outstanding,
diluted basis......................... 26,431 29,599 33,474 33,347 32,037
Dividends per share...................... $ 0.22 $ 0.24 $ 0.26 $ 0.19 $ 0.21
Earnings before income taxes and
extraordinary item as a percent of
total revenue......................... 6.56% 9.92% 13.59% 14.51% 9.96%
BALANCE SHEET DATA:
Investments.............................. $270,134 $376,285 $ 519,332 $434,327 $ 490,653
Cash and cash equivalents................ 65,551 54,975 42,492 53,701 46,209
Notes payable............................ 179,508 163,015 214,624 155,566 190,295
Reserve for claim losses................. 196,527 201,674 224,534 215,611 239,254
Stockholders' equity..................... 162,645 274,050 396,740 354,768 446,200
</TABLE>
6
<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
We may offer any combination of senior debt securities or subordinated debt
securities, either separately, or together with, or upon the conversion of or in
exchange for, other securities. Debt securities are unsecured general
obligations. Senior debt securities rank above all subordinated debt and equal
to all other debt outstanding on the date of the prospectus supplement.
Subordinated debt securities rank in right of payment below all other debt
outstanding at or after the time issued, unless the other debt provides that it
is not senior to the subordinated debt. As used in this prospectus, "debt
securities" means the debentures, notes, bonds and other evidences of
indebtedness that we issue. The prospectus supplement will describe the specific
terms of the debt securities offered through that prospectus supplement and any
general terms outlined in this section that will not apply to those debt
securities.
When we issue debt securities, we will enter into an indenture with a
trustee. The indenture is the legal document which specifies the terms and
conditions of the debt securities and the obligations of the trustee to persons
who hold the debt securities. We may issue the senior debt securities and the
subordinated debt securities under separate indentures between us, as issuer,
and the trustee or trustees identified in the prospectus supplement. A copy of
the form of each type of indenture has been or will be filed as an exhibit to
the registration statement of which this prospectus is a part.
The following summaries of the debt securities and the indentures are not
complete. We urge you to read the indentures and the description of the debt
securities included in the prospectus supplement.
GENERAL
We may issue debt securities in separate series. We may specify a maximum
aggregate principal amount for the debt securities of any series. The debt
securities will have terms that are consistent with the indentures. Unless
otherwise specified in the applicable prospectus supplement, senior debt
securities will be unsecured and unsubordinated obligations of ours and will
rank equal with all our other unsecured and unsubordinated debt. Subordinated
debt securities will be paid only if all payments due under our senior debt,
including any outstanding senior debt securities, have been made.
The indentures might not limit the amount of other debt that we may incur
and might not contain a financial or similar restrictive covenants. The
indentures might not contain any provisions to protect holders of debt
securities against a sudden or dramatic decline in our ability to pay our debt.
Because we are a holding company that conducts our operations through our
subsidiaries, holders of debt securities will generally have a junior position
to claims of creditors of our subsidiaries, including trade creditors,
debtholders, secured creditors, taxing authorities, beneficiaries under title
insurance policies, and guarantee holders. As of September 30, 1999, our
subsidiaries had approximately $98.0 million of outstanding debt. Moreover, our
ability to pay principal and interest on the debt securities is, to a large
extent, dependent upon our receiving dividends, interest or other amounts from
our subsidiaries. Certain of our principal operating subsidiaries are subject to
insurance regulations that require minimum amounts of statutory surplus, which
may restrict the amount of funds which are available to us from such
subsidiaries, or require prior approval
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<PAGE> 9
from the regulatory agency before those subsidiaries can pay us any
extraordinary dividends.
TERMS OF DEBT SECURITIES
A prospectus supplement relating to a series of debt securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- the title and type of the debt securities;
- any limit on the total principal amount of the debt securities or the
series of which they are a part;
- the price at which the debt securities will be issued;
- the date or dates on which the principal of and premium, if any, on the
debt securities will be payable;
- the maturity date of the debt securities;
- if the debt securities will bear interest, the interest rate on the debt
securities, the date from which interest will accrue, the record and
interest payment dates for the debt securities, the first interest
payment date, and any circumstances under which we may defer interest
payments;
- the terms and conditions upon which the debt securities will be
convertible into, or exchangeable for, common stock or other securities,
including the initial conversion price or exchange rate and any
adjustments thereto;
- the subordination terms applicable to the debt securities;
- any optional redemption provisions that would permit us or the holders of
debt securities to elect redemption or repayment of the debt securities
prior to their final maturity including upon a change of control of
Fidelity or other extraordinary event;
- the currency or currencies in which the debt securities will be
denominated and payable, if other than U.S. dollars;
- any provisions that would permit us or the holders of the debt securities
to elect the currency or currencies in which the debt securities are
paid;
- whether the provisions described under the heading "Defeasance" below
apply to the debt securities;
- any changes to or additional events of default or covenants;
- whether the debt securities will be issued in whole or in part in the
form of global securities and, if so, the depositary for those global
securities;
- any special tax implications of the debt securities; and
- any other terms of the debt securities.
PAYMENT; TRANSFER
In the applicable prospectus supplement, we will designate a place of
payment where you can receive payment of the principal of and any premium and
interest on the debt
8
<PAGE> 10
securities or transfer the debt securities. Even though we will designate a
place of payment, we may elect to pay any interest on the debt securities by
mailing a check to the person listed as the owner of the debt securities in the
security register or by wire transfer to an account designated by that person in
writing not less than ten days before the date of the interest payment. There
will be no service charge for any registration of transfer or exchange of the
debt securities, but we may require you to pay any tax or other governmental
charge payable in connection with a transfer or exchange of the debt securities.
DENOMINATIONS
Unless the prospectus supplement states otherwise, the debt securities will
be issued only in registered form, without coupons, in denominations of $1,000
each or multiples of $1,000.
ORIGINAL ISSUE DISCOUNT
Debt securities may be issued under the indenture as original issue
discount securities and sold at a substantial discount below their stated
principal amount. If a debt security is an "original issue discount security,"
that means that an amount less than the principal amount of the debt security
will be due and payable upon a declaration of acceleration of the maturity of
the debt security pursuant to the indenture. The applicable prospectus
supplement will describe the federal income tax consequences and other special
factors which should be considered prior to purchasing any original issue
discount securities.
CONVERSION AND EXCHANGE RIGHTS
The applicable prospectus supplement relating to a series of debt
securities will describe the terms on which those debt securities are
convertible into or exchangeable for shares of common stock or other securities.
The applicable prospectus supplement will also describe how the number of
shares of common stock or other securities or property to be received upon
conversion or exchange would be calculated, the date before any day fixed for
redemption of the debt securities at which the conversion or exchange rights
will expire, and the events or circumstances which will result in adjustments to
the conversion or exchange price, and, as applicable, the formulae for
determining the adjusted conversion or exchange price. Events which may result
in an adjustment include:
- stock dividends, stock splits and similar changes to our common stock;
- other distributions of debt as assets to holders of common stock;
- extraordinary cash dividends on our common stock;
- reclassifications of our common stock; and
- mergers, consolidations or sales of substantially all of our assets in
which holders of common stock are entitled to receive stock, other
securities, or other property or assets.
The conversion or exchange price may also be subject to reduction, at our
option, in certain circumstances to be described in the applicable prospectus
supplement.
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<PAGE> 11
SUBORDINATION
Unless the prospectus supplement indicates otherwise, the following
provisions will apply to the subordinated debt securities. The indebtedness
underlying the subordinated debt securities will be payable only if all payments
due under senior indebtedness, including any outstanding senior debt securities,
have been made. If we distribute our assets to creditors upon any dissolution,
winding-up, liquidation or reorganization or in bankruptcy, insolvency,
receivership or similar proceedings, we must first pay all amounts due or to
become due on all senior indebtedness before we pay the principal of, or any
premium or interest on, the subordinated debt securities. In the event the
subordinated debt securities are accelerated because of an event of default, we
may not make any payment on the subordinated debt securities until we have paid
all senior indebtedness or the acceleration is rescinded. If the payment of
subordinated debt securities accelerates because of an event of default, we must
promptly notify holders of senior indebtedness of the acceleration.
We may not make any payment on the subordinated debt securities if a
default in the payment of the principal of, premium, if any, interest or other
obligations, including a default under any repurchase or redemption obligation,
in respect of designated senior indebtedness occurs and continues beyond any
applicable grace period. We may not make any payment on the subordinated debt
securities if any other default occurs and continues with respect to designated
senior indebtedness that permits holders of the designated senior indebtedness
to accelerate its maturity and the trustee receives a notice of such default
from us, a holder of such designated senior indebtedness or other person
permitted to give such notice. We may not resume payments on the subordinated
debt securities until the defaults are cured or certain periods pass.
If we experience a bankruptcy, dissolution or reorganization, holders of
senior indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors.
The term "designated senior indebtedness" means our obligations under any
particular senior indebtedness in which the debt instrument expressly provides
that the senior indebtedness will be designated senior indebtedness with respect
to the subordinated debt securities.
The indenture for subordinated debt securities may not limit our ability to
incur additional senior indebtedness.
CONSOLIDATION, MERGER OR SALE
The indentures generally permit a consolidation or merger between us and
another corporation. They also permit the sale or transfer by us of all or
substantially all of our property and assets and the purchase by us of all or
substantially all of the property and assets of another corporation. These
transactions are permitted if:
- the resulting or acquiring corporation (if other than us) assumes all of
our responsibilities and liabilities under the indenture, including the
payment of all amounts due on the debt securities and performance of the
covenants in the indenture; and
- immediately after the transaction, no event of default exists.
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We are not required by the indenture to comply with those provisions if we sell
all of our property and assets to another corporation if, immediately after the
sale, that corporation is a subsidiary in which we own all of the capital stock.
If we consolidate or merge with or into any other corporation or sell all
or substantially all of our assets according to the terms and conditions of the
indenture, the resulting or acquiring corporation will be substituted for us in
the indenture with the same effect as if it had been an original party to the
indenture. As a result, such successor corporation may exercise our rights and
powers under the indenture, in our name or in its own name, and we will be
released from all our liabilities and obligations under the indenture and under
the debt securities.
MODIFICATION AND WAIVER
Under the indentures, certain of our rights and obligations and certain of
the rights of holders of the debt securities may be modified or amended with the
consent of the holders of a majority in aggregate principal amount of the
outstanding debt securities of each series of debt securities affected by the
modification or amendment. The following modifications and amendments will not
be effective against any holder without its consent:
- a change in the stated maturity date of any payment of principal or
interest;
- a reduction in certain payments due on the debt securities;
- make a change that adversely affects the rights of the holders of the
debt securities to convert them into common stock;
- a change in the place of payment or currency in which any payment on the
debt securities is payable;
- a limitation of a holder's right to sue us for the enforcement of certain
payments due on the debt securities;
- a reduction in the percentage of outstanding debt securities required to
consent to a modification or amendment of the indenture;
- a limitation of a holder's right, if any, to repayment of debt securities
at such holder's option; and
- a modification of any of the foregoing requirements or a reduction in the
percentage of outstanding debt securities required to waive compliance
with certain provisions of the indenture or to waive certain defaults
under the indenture.
Under the indenture, the holders of a majority in aggregate principal
amount of the outstanding debt securities of any series of debt securities may,
on behalf of all holders of that series:
- waive compliance by us with certain restrictive covenants of the
indenture; and
- waive any past default under the indenture, except: a default in the
payment of the principal of or any premium or interest on any debt
securities of that series, or a default under any provision of the
indenture which itself cannot be modified or amended without the consent
of the holders of each outstanding debt security of that series.
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EVENTS OF DEFAULT
An "event of default," when used in an indenture with respect to any series
of debt securities, means any of the following:
- failure to pay interest on any debt security of that series for a
specified number of days after the payment is due;
- failure to pay the principal of or any premium on any debt security of
that series when due;
- failure to perform any other covenant in the indenture that applies to
debt securities of that series for a specified number of days after we
have received written notice of the failure to perform in the manner
specified in the indenture;
- certain events in bankruptcy, insolvency or reorganization; or
- any other event of default that may be specified in the prospectus
supplement.
If an event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of that series may declare the entire
principal of all the debt securities of that series to be due and payable
immediately. If such a declaration occurs, the holders of a majority of the
aggregate principal amount of the outstanding debt securities of that series
can, subject to certain conditions, rescind the declaration.
The prospectus supplement relating to each series of debt securities which
are original issue discount securities will describe the particular provisions
that relate to the acceleration of maturity of a portion of the principal amount
of such series when an event of default occurs and continues.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under the indenture. The indenture requires us to file an
officers' certificate with the trustee each year that states that certain
defaults do not exist under the terms of the indenture. The trustee may withhold
notice to the holders of debt securities of any default, except defaults in the
payment of principal, premium, interest or any sinking fund installment, if it
considers such withholding of notice to be in the best interests of the holders.
Other than its duties in the case of a default, a trustee is not obligated
to exercise any of its rights or powers under the indenture at the request,
order or direction of any holders, unless the holders offer the trustee
reasonable indemnification. If reasonable indemnification is provided, then,
subject to certain other rights of the trustee, the holders of a majority in
principal amount of the outstanding debt securities of any series may, with
respect to the debt securities of that series, direct the time, method and place
of conducting any proceeding for any remedy available to the trustee, or
exercising any trust or power conferred upon the trustee.
DEFEASANCE
At the time that we establish a series of debt securities under the
indenture, we can provide that the debt securities of that series are subject to
the defeasance and discharge provisions of the indenture. A defeasance provision
enables us to terminate our obligation to pay the debt securities if we provide
for payment through another source. In particular,
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these provisions would release us from our obligations to make payments on the
debt securities of that series and to comply with the other covenants if we
deposit with the trustee, in trust, sufficient money or government obligations
to pay the principal, interest, any premium and any other sums due on the debt
securities of that series on the dates such payments are due under the indenture
and the terms of the debt securities. As used above, "government obligations"
mean:
- - securities of the same government which issued the currency in which the
series of debt securities are denominated and in which interest is payable; or
- - securities of government agencies backed by the full faith and credit of such
government.
In the event that we deposit funds in trust and discharge our obligations
under a series of debt securities as described above, then:
- - the indenture will no longer apply to the debt securities of that series
(except for certain obligations to compensate, reimburse and indemnify the
trustee, to register the transfer and exchange of debt securities, to convert
debt securities into common stock, to replace lost, stolen or mutilated debt
securities and to maintain paying agencies and the trust funds); and
- - holders of debt securities of that series can only look to the trust fund for
payment of principal, any premium and interest on the debt securities of that
series.
Under federal income tax law, such deposit and discharge may be treated as
an exchange of the related debt securities for an interest in the trust
mentioned above. No such defeasance shall be permitted unless prior thereto, the
trustee shall have received an opinion of counsel to the effect that such action
will not have any federal income tax consequences to the holders.
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DESCRIPTION OF PREFERRED STOCK
We may issue preferred stock either separately, or together with, or upon
the conversion of or in exchange for, other securities. A prospectus supplement
will describe the specific terms of the series of the preferred stock offered
through that prospectus supplement and any general terms outlined in this
section that will not apply to those shares of preferred stock.
We have summarized certain terms and provisions of the preferred stock in
this section. The summary is not complete. We have also filed or incorporated by
reference our Restated Certificate of Incorporation and the form of Certificate
of Designation, Preferences and Rights of Preferred Stock as exhibits to the
registration statement. You should read our Restated Certificate of
Incorporation and the Certificate of Designation relating to the applicable
series of the preferred stock for additional information before you buy any
preferred stock.
We may elect to offer depositary shares representing a fractional interest
in shares of preferred stock deposited with a depositary. For information about
the depositary shares, please see "Description of Depositary Shares" below.
GENERAL
Pursuant to our Restated Certificate of Incorporation, our Board of
Directors has the authority, without further stockholder action, to issue a
maximum of 3,000,000 shares of preferred stock. As of September 30, 1999, no
shares of preferred stock were issued or outstanding or reserved for issuance.
The Board of Directors has the authority to determine or fix the following terms
with respect to shares of any series of preferred stock:
- the number of shares and designation or title of the shares;
- dividend rights;
- whether and upon what terms the shares will be redeemable;
- the rights of the holders upon our dissolution or upon the distribution
of our assets;
- whether and upon what terms the shares will have a purchase, retirement
or sinking fund;
- the terms and conditions upon which the shares will be convertible into
common stock or other securities, including the initial conversion rate
and any adjustments to the conversion rate;
- the voting rights, if any, which will apply; and
- any other preferences, rights, limitations or restrictions of the series.
If we purchase, redeem or convert shares of preferred stock, we will retire
and cancel them and restore them to the status of authorized but unissued shares
of preferred stock. Such shares will not be part of any particular series of
preferred stock and may be reissued by us.
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The preferred stock will have the dividend, liquidation, redemption, voting
and conversion rights described in this section unless the applicable prospectus
supplement provides otherwise. You should read the prospectus supplement
relating to the particular series of the preferred stock for specific terms,
including:
- the title and liquidation preference of the preferred stock and the
number of shares offered;
- the initial public offering price at which we will issue the preferred
stock;
- the dividend rate or rates, the method of calculation, the dividend
periods, the dates on which dividends will be payable and whether the
dividends will be cumulative or noncumulative and, if cumulative, the
dates from which the dividends will start to cumulate;
- any redemption or sinking fund provisions;
- the conversion provisions;
- whether we have elected to offer depositary shares as described under
"Description of Depositary Shares" below; and
- any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
When we issue shares of preferred stock, they will be fully paid and
nonassessable. Shares of preferred stock are fully paid and nonassessable if the
full purchase price for the outstanding preferred stock will have been paid and
the holders of such shares of preferred stock will not be assessed any
additional monies for such preferred stock. Unless the applicable prospectus
supplement specifies otherwise:
- each series of the preferred stock will rank equally in all respects with
the outstanding shares of each other series of the preferred stock; and
- the preferred stock will have no preemptive rights to subscribe for any
additional securities which we may issue in the future.
DIVIDENDS
The holders of the preferred stock of each series will be entitled to
receive cash dividends, if declared by our Board of Directors or its duly
authorized committee, out of our assets that we can legally use to pay
dividends. The prospectus supplement relating to a particular series of
preferred stock will set forth the dividend rates and dates on which dividends
will be payable. The rates may be fixed or variable or both. If the dividend
rate is variable, the applicable prospectus supplement will describe the formula
used for determining the dividend rate for each dividend period. We will pay
dividends to the holders of record as they appear on our stock books on the
record dates fixed by our Board of Directors or its duly authorized committee.
The applicable prospectus supplement will also state whether the dividends
on any series of the preferred stock are cumulative or noncumulative. If our
Board of Directors does not declare a dividend payable on a dividend payment
date on any noncumulative series of preferred stock, then the holders of that
series will not be entitled to receive a
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dividend for that dividend period and we will not be obligated to pay the
dividend for that dividend period even if the Board declares a dividend on that
series payable in the future.
REDEMPTION
A series of the preferred stock may be redeemable, in whole or in part, at
our option, and may be subject to mandatory redemption pursuant to a sinking
fund or otherwise, as described in the applicable prospectus supplement.
Redeemed preferred stock will become authorized but unissued shares of preferred
stock that we may issue in the future.
If a series of the preferred stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we will
redeem each year and the redemption price. If shares of preferred stock are
redeemed, we will pay all accrued and unpaid dividends on those shares of
preferred stock up to, but excluding, the redemption date. The prospectus
supplement will also specify whether the redemption price will be paid in cash
or other property. If (1) we are only permitted to pay the redemption price for
a series of preferred stock from the proceeds of a capital stock issuance and
(2) the proceeds from the issuance are insufficient or no such issuance has
occurred, then the terms of that series may provide that the preferred stock
will automatically and mandatorily be converted into such capital stock.
If fewer than all of the outstanding shares of any series of the preferred
stock are to be redeemed, our Board of Directors will determine the number of
shares to be redeemed. We will redeem the shares pro rata from the holders of
record in proportion to the number of shares held by them, with adjustments to
avoid redemption of fractional shares.
Even though the terms of a series of preferred stock may permit redemption
of shares of preferred stock in whole or in part, if any dividends, including
accumulated dividends, on that series are past due:
- - we will not redeem any preferred stock of that series unless we simultaneously
redeem all outstanding shares of preferred stock of that series; and
- - we will not purchase or otherwise acquire any preferred stock of that series.
The prohibition discussed in the prior sentence will not prohibit us from
purchasing or acquiring preferred stock of that series pursuant to a purchase or
exchange offer if we make the offer on the same terms to all holders of that
series.
Unless the applicable prospectus supplement specifies otherwise, we will
give notice of a redemption by mailing a notice to each record holder of the
shares to be redeemed, between 30 to 60 days prior to the date fixed for
redemption. If we issue depositary shares representing interests in preferred
shares, we will give the notice to the depositary between 40 to 70 days prior to
the date fixed for redemption. We will mail the notices to the holders'
addresses as they appear on our stock records. Each notice will state:
- - the redemption date;
- - the number of shares and the series of the preferred stock to be redeemed;
- - the redemption price;
- - the place or places where holders can surrender the certificates for the
preferred stock for payment of the redemption price;
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- - that dividends on the shares to be redeemed will cease to accrue on the
redemption date; and
- - the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the preferred stock
held by any holder, we will also specify the number of shares to be redeemed
from the holder in the notice.
If we have given notice of the redemption and have provided the funds for
the payment of the redemption price, then beginning on the redemption date:
- - the dividends on the preferred stock called for redemption will no longer
accrue;
- - such shares will no longer be considered outstanding; and
- - the holders will no longer have any rights as stockholders except to receive
the redemption price.
When the holder properly surrenders the redeemed shares, the redemption
price will be paid out of the funds provided by us. If we redeem fewer than all
of the shares represented by any certificate, we will issue a new certificate
representing the unredeemed shares without cost to the holder.
In the event that a redemption described above is deemed to be a "tender
offer" within the meaning of Rule 14e-1 under the Exchange Act, we will comply
with all applicable provisions of the Exchange Act.
CONVERSION
The applicable prospectus supplement relating to a series of convertible
preferred stock will describe the terms on which shares of that series are
convertible into shares of common stock or other securities, which may include a
different series of preferred stock. The applicable prospectus supplement will
also specify the price at which the shares of preferred stock are convertible,
the date before any day fixed for redemption of the preferred stock at which the
conversion rights will expire, and the events or circumstances which will result
in adjustments to the conversion price, and, as applicable, the formulae for
determining the adjusted conversion price. Events which may result in a
conversion price adjustment include:
- - stock dividends, stock splits and similar changes to our common stock;
- - other distributions of debt as assets to holders of common stock;
- - extraordinary cash dividends on the common stock;
- - reclassifications of the common stock; and
- - mergers, consolidations or sales of substantially all of our assets in which
holders of common stock are entitled to receive stock, other securities, or
other property or assets.
The conversion price may also be subject to reduction, at our option, in
certain circumstances to be described in the applicable prospectus supplement.
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RIGHTS UPON LIQUIDATION
Unless the applicable prospectus states otherwise, if we voluntarily or
involuntarily liquidate, dissolve or wind up our business, the holders of shares
of each series of the preferred stock will be entitled to receive:
- - liquidation distributions in the amount stated in the applicable prospectus
supplement; and
- - all accrued and unpaid dividends, whether or not earned or declared.
We will pay these amounts to the holders of shares of each series of the
preferred stock, and all amounts owing on any preferred stock ranking equally
with such series of preferred stock as to distributions upon liquidation, out of
our assets available for distribution to stockholders before any distribution is
made to holders of any securities ranking junior to the series of preferred
stock upon liquidation.
The sale of all or substantially all of our property and assets, our merger
into or consolidation with any other corporation or the merger of any other
corporation into us will not be considered a dissolution, liquidation or winding
up of our business.
If (1) we voluntarily or involuntarily liquidate, dissolve or wind up our
business and (2) the assets available for distribution to the holders of the
preferred stock of any series and any other shares of our stock ranking equal
with such series as to any such distribution are insufficient to pay all amounts
to which the holders are entitled, then we will only make pro rata distributions
to the holders of all shares ranking equal as to distributions upon dissolution,
liquidation or winding up of our business. In other words, the distributions we
pay to the holders of all shares ranking equal as to distributions upon
dissolution, liquidation or winding up of our business will bear the same
relationship to each other that the full distributable amounts for which such
holders are respectively entitled upon such dissolution, liquidation or winding
up of our business bear to each other.
After we pay the full amount of the liquidation distribution to which the
holders of a series of the preferred stock are entitled, such holders will have
no right or claim to any of our remaining assets.
VOTING RIGHTS
Except as described in this section or in the applicable prospectus
supplement, or except as expressly required by applicable law, the holders of
the preferred stock will not be entitled to vote. If the holders of a series of
preferred stock are entitled to vote and the applicable prospectus supplement
does not state otherwise, then each share of preferred stock will be entitled to
one vote.
As more fully described under "Description of Depositary Shares" below, if
we elect to provide for the issuance of depositary shares representing
fractional interests in shares of preferred stock, the holders of each
depositary share will be entitled to a fraction of a vote.
For any series of preferred stock having one vote per share, the voting
power of the series, on matters on which holders of such series and holders of
any other series of preferred stock are entitled to vote as a single class, will
solely depend on the total number of shares in such series.
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Unless we receive the consent of the holders of an outstanding series of
preferred stock and the outstanding shares of all other series of preferred
stock which (1) rank equal with such series either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up of our
business and (2) have voting rights that are exercisable and that are similar to
those of such series, we will not:
- authorize, create or issue, or increase the authorized or issued amount
of, any class or series of stock ranking prior to such outstanding
preferred stock with respect to payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up of our business; or
- amend, alter or repeal, whether by merger, consolidation or otherwise,
the provisions of our Restated Certificate of Incorporation or of the
resolutions contained in a Certificate of Designation creating such
series of the preferred stock so as to materially and adversely affect
any right, preference, privilege or voting power of such outstanding
preferred stock.
This consent must be given by the holders of at least two-thirds of all
such outstanding preferred stock described in the preceding sentence, voting
together as a single class. We will not be required to obtain this consent with
respect to the actions listed in the second bullet point above, however, if we
only (1) increase the amount of the authorized preferred stock, (2) create and
issue another series of preferred stock, or (3) increase the amount of
authorized shares of any series of preferred stock, if such preferred stock in
each case ranks equal with or junior to the preferred stock with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of our business.
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DESCRIPTION OF DEPOSITARY SHARES
We may issue depositary shares representing a fractional interest in shares
of preferred stock. The prospectus supplement will describe the specific terms
of the depositary shares offered through that prospectus supplement and any
general terms outlined in this section that will not apply to those depositary
shares.
We have summarized certain terms and provisions of the deposit agreement,
the depositary shares and the depositary receipts in this section. The summary
is not complete. We have also filed the form of deposit agreement, including the
form of depositary receipt, as an exhibit to the registration statement. You
should read the forms of deposit agreement and depositary receipt relating to a
series of preferred stock for additional information before you buy any
depositary shares that represent preferred stock of such series.
GENERAL
We may offer fractional interests in preferred stock, rather than full
shares of preferred stock. If we do, we will provide for the issuance by a
depositary to the public of receipts for depositary shares, each of which will
represent a fractional interest in a share of a particular series of preferred
stock. The fractional interest to be issued will be specified in the applicable
prospectus supplement.
The stock of any series of preferred stock underlying the depositary shares
will be deposited under a separate deposit agreement between us and a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50 million acting as a depositary. We
will name the depositary in the applicable prospectus supplement. Subject to the
terms of the deposit agreement, each owner of a depositary share will have a
fractional interest in all the rights and preferences of the preferred stock
underlying such depositary shares. Those rights include any dividend, voting,
redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under
the deposit agreement. If you purchase fractional interests in shares of the
related series of preferred stock, you will receive depositary receipts as
described in the applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to issue temporary
depositary receipts substantially identical to the final depositary receipts
although not in final form. The holders of the temporary depositary receipts
will be entitled to the same rights as if they held the depositary receipts in
final form. Holders of the temporary depositary receipts can exchange them for
the final depositary receipts at our expense.
If you surrender depositary receipts at the principal office of the
depositary, you will be entitled to receive at such office the number of shares
of preferred stock and any money or other property represented by such
depositary shares. We will not issue partial shares of preferred stock. If you
deliver depositary receipts evidencing a number of depositary shares that
represent more than a whole number of shares of preferred stock, the depositary
will issue you a new depositary receipt evidencing such excess number of
depositary shares at the same time that the shares of preferred stock are
withdrawn. Holders of preferred stock received in exchange for depositary shares
will no longer be entitled to deposit such shares under the deposit agreement or
to receive depositary shares in exchange for such preferred stock.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record holders
of depositary shares representing the preferred stock in proportion to the
number of depositary shares owned by the holders on the relevant record date.
The depositary will distribute only the amount that can be distributed without
attributing to any holder of depositary shares a fraction of one cent. The
balance not distributed will be added to and treated as part of the next sum
received by the depositary for distribution to record holders of depositary
shares.
If there is a distribution other than in cash, the depositary will
distribute property to the holders of depositary shares, unless the depositary
determines that it is not feasible to make such distribution. If this occurs,
the depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to the holders of depositary shares.
The deposit agreement will also contain provisions relating to how any
subscription or similar rights offered by us to holders of the preferred stock
will be made available to the holders of depositary shares.
CONVERSION AND EXCHANGE
If any series of preferred stock underlying the depositary shares is
subject to conversion or exchange, the applicable prospectus supplement will
describe the rights or obligations of each record holder of depositary receipts
to convert or exchange the depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If the series of the preferred stock underlying the depositary shares is
subject to redemption, the depositary shares will be redeemed from the
redemption proceeds, in whole or in part, of such series of the preferred stock
held by the depositary. The depositary will mail notice of redemption between 30
to 60 days prior to the date fixed for redemption to the record holders of the
depositary shares to be redeemed at their addresses appearing in the
depositary's records. The redemption price per depositary share will bear the
same relationship to the redemption price per share of preferred stock that the
depositary share bears to the underlying preferred share. Whenever we redeem
preferred stock held by the depositary, the depositary will redeem, as of the
same redemption date, the number of depositary shares representing the preferred
stock redeemed. If less than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro rata as
determined by the depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding. When the depositary shares are no
longer outstanding, all rights of the holders will cease, except the right to
receive money or other property that the holders of the depositary shares were
entitled to receive upon such redemption. Such payments will be made when
holders surrender their depositary receipts to the depositary.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock are entitled to vote, the depositary will mail information about the
meeting contained in the notice to the record holders of the depositary shares
relating to such preferred stock. Each
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record holder of such depositary shares on the record date will be entitled to
instruct the depositary as to how the preferred stock underlying the holder's
depositary shares should be voted.
The depositary will try, if practical, to vote the number of preferred
stock underlying the depositary shares according to the instructions received.
We will agree to take all action requested by and deemed necessary by the
depositary in order to enable the depositary to vote the preferred stock in that
manner. The depositary will not vote any preferred stock for which it does not
receive specific instructions from the holders of the depositary shares relating
to such preferred stock.
TAXATION
Owners of depositary shares will be treated for federal income tax purposes
as if they were owners of the shares of preferred stock represented by the
depositary shares. Accordingly, for federal income tax purposes they will have
the income and deductions to which they would be entitled if they were holders
of the preferred stock. In addition:
- no gain or loss will be recognized for federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares as
provided in the deposit agreement;
- the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, upon the exchange, be the same as the aggregate
tax basis of the depositary shares exchanged for such preferred stock;
and
- the holding period for the preferred stock, in the hands of an exchanging
owner of depositary shares who held the depositary shares as a capital
asset at the time of the exchange, will include the period that the owner
held such depositary shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between us and
the depositary at any time. However, any amendment that materially and adversely
alters the rights of the existing holders of depositary shares will not be
effective unless approved by the record holders of at least a majority of the
depositary shares then outstanding. A deposit agreement may be terminated by us
or the depositary only if:
- all outstanding depositary shares relating to the deposit agreement have
been redeemed; or
- there has been a final distribution on the preferred stock of the
relevant series in connection with our liquidation, dissolution or
winding up of our business and the distribution has been distributed to
the holders of the related depositary shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay associated
charges of the depositary for the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary shares will pay
transfer and other taxes and governmental
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charges and any other charges that are stated to be their responsibility in the
deposit agreement.
MISCELLANEOUS
We will forward to the holders of depositary shares all reports and
communications that we must furnish to the holders of the preferred stock.
Neither the depositary nor we will be liable if the depositary is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the deposit agreement. Our obligations and the depositary's
obligations under the deposit agreement will be limited to performance in good
faith of duties set forth in the deposit agreement. Neither the depositary nor
we will be obligated to prosecute or defend any legal proceeding connected with
any depositary shares or preferred stock unless satisfactory indemnity is
furnished to us and/or the depositary. We and the depositary may rely upon
written advice of counsel or accountants, or information provided by persons
presenting preferred stock for deposit, holders of depositary shares or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering notice to us. We may
also remove the depositary at any time. Resignations or removals will take
effect upon the appointment of a successor depositary and its acceptance of the
appointment. The successor 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 million.
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DESCRIPTION OF COMMON STOCK
We may issue shares of common stock. A prospectus supplement will describe
the specific terms of the common stock offered through that prospectus
supplement and any general terms outlined in this section that will not apply to
that common stock.
We have summarized certain terms and provisions of the common stock in this
section. The summary is not complete. We have filed our Restated Certificate of
Incorporation and our bylaws as exhibits to the registration statement. You
should read our Restated Certificate of Incorporation and our bylaws for
additional information before you buy any common stock.
GENERAL
Stock Outstanding. As of December 17, 1999, our authorized common stock was
50,000,000 shares, of which 27,558,367 shares were issued and outstanding.
Payment of Dividends. Holders of common stock may receive dividends when
declared by our Board of Directors out of our funds that we can legally use to
pay dividends. We may pay dividends in cash, stock or other property. In certain
cases, holders of common stock may not receive dividends until we have satisfied
our obligations to any holders of outstanding preferred stock. Our ability to
pay dividends may also be restricted by loan agreements, regulatory
restrictions, or other transactions that we enter into from time to time.
Voting Rights. Holders of common stock have the exclusive power to vote on
all matters presented to our stockholders unless Delaware law or the certificate
of designation for an outstanding series of preferred stock gives the holders of
that preferred stock the right to vote on certain matters. Each holder of common
stock is entitled to one vote per share. Holders of common stock have no
cumulative voting rights for the election of directors. With no cumulative
voting rights, a holder of a single share of our common stock cannot cast more
than one vote for each position to be filled on our Board of Directors.
Rights Upon Liquidation; No Preemptive or Preferred Rights. If we
voluntarily or involuntarily liquidate, dissolve or wind up our business,
holders of common stock will receive pro rata, according to shares held by them,
any remaining assets legally distributable to our stockholders after we have
provided for any liquidation preference for outstanding shares of preferred
stock. When we issue securities in the future, holders of common stock have no
preemptive rights, as holders of common stock, to buy any portion of those
issued securities. Holders of common stock have no preferences, conversion or
exchange rights.
Listed on NYSE; Transfer Agent. Our outstanding shares of common stock are
listed on the New York Stock Exchange under the symbol "FNF." Continental Stock
Transfer and Trust Company serves as the transfer agent and registrar for the
common stock.
Fully Paid. The outstanding shares of common stock are fully paid and
nonassessable. Any additional common stock that we may issue in the future
pursuant to an offering under this prospectus or upon the conversion or exercise
of other securities offered under this prospectus will also be fully paid and
nonassessable.
24
<PAGE> 26
ANTI-TAKEOVER PROVISIONS
Certain provisions of our Restated Certificate of Incorporation may make it
less likely that our management would be changed or someone would acquire voting
control of our company without our Board's consent. These provisions may delay,
deter or prevent tender offers or takeover attempts that stockholders may
believe are in their best interests, including tender offers or attempts that
might allow stockholders to receive premiums over the market price of their
common stock.
Fair Price Provision; Transactions With Interested Stockholders. Our
Restated Certificate of Incorporation prohibits certain business combinations
between us and interested stockholders, which include direct and indirect owners
of 10% or more of our voting stock unless those transactions are approved by
holders of at least 66.67% of our outstanding voting stock not owned by any
interested stockholders, voting together as a single class. This 66.67% approval
is in addition to any approval required by law. Business combinations requiring
the 66.67% approval include the following transactions, among others:
- any merger or consolidation with an interested stockholder or a
corporation affiliated with an interested stockholder;
- any sale, lease, pledge, exchange, mortgage or other transfer or
disposition of our assets valued at 10% or more of the fair market value
of our consolidated assets to an interested stockholder or person or
entity affiliated with an interested stockholder, other than in the
ordinary course of business;
- the issuance, pledge or transfer by us of any of our securities, or the
securities of one or more of our subsidiaries to an interested
stockholder in exchange for consideration with a value of 10% or more of
the fair market value of our consolidated assets, unless such person is
acting as an underwriter for such securities;
- any sale, lease, pledge, exchange, mortgage or other transfer or
disposition of the assets of any interested stockholder or any person or
entity affiliated with an interested stockholder with a value of 10% or
more of the fair market value of our consolidated assets to us or one or
more of our subsidiaries, other than in the ordinary course of business;
- the adoption of any plan proposed by or on behalf of an interested
stockholder or a person or entity affiliated with an interested
stockholder to liquidate or dissolve our company; and
- any transaction that increases the voting power or proportionate share of
any class of our equity or convertible securities owned directly or
indirectly by an interested stockholder or a person or entity affiliated
with an interested stockholder.
Stockholders do not need to approve a business combination under our
Restated Certificate of Incorporation if 66.67% of the "continuing directors"
approve the business combination. Continuing directors are those directors,
other than the interested stockholder or any representative or affiliate of the
interested stockholder, (1) who were members of the Board of Directors before
the interested stockholder involved in the business combination became an
interested stockholder or (2) whose election or nomination was approved by a
majority of such directors.
25
<PAGE> 27
Stockholders also do not need to approve a business combination under our
Restated Certificate of Incorporation that meets certain conditions specified in
our Restated Certificate of Incorporation. These conditions include, among other
things, the following:
- the price received by each stockholder is at least as high as the highest
price paid for our shares by the interested stockholder in becoming an
interested stockholder in the two years before the business combination
is announced, and also is at least as high as the higher of the fair
market value of our shares when the interested stockholder became an
interested stockholder or when the business combination was announced;
- after the interested stockholder became an interested stockholder and
prior to completion of the business combination, we have not failed to
declare and pay any quarterly dividends, unless approved by 66.67% of the
continuing directors;
- the interested stockholder has not acquired any additional shares of our
stock after becoming an interested stockholder;
- after the interested stockholder became an interested stockholder, such
person has not directly or indirectly received the benefit of any loans,
advances, guarantees, pledges or other financial assistance provided by
us; and
- a proxy or information statement describing the proposed business
combination is mailed to all holders of our stock at least 30 days before
the business combination is completed.
Holders of at least 66.67% of our outstanding voting stock not owned by any
interested stockholders, voting together as one class, must approve a proposal
to amend or repeal, or adopt provisions inconsistent with the provisions of our
Restated Certificate of Incorporation described above unless such proposal is
approved by 66.67% of the continuing directors, in which case holders of at
least a majority of the outstanding voting stock entitled to vote may approve
such a proposal.
Preferred Stock May be Issued Without Stockholder Approval. Our Board of
Directors can at any time, under our Restated Certificate of Incorporation and
without stockholder approval, issue one or more new series of preferred stock.
In some cases, the issuance of preferred stock without stockholder approval
could discourage or make more difficult attempts to take control of our company
through a merger, tender offer, proxy contest or otherwise. Preferred stock with
special voting rights or other features issued to persons favoring our
management could stop a takeover by preventing the person trying to take control
of our company from acquiring enough voting shares necessary to take control.
Classified Board of Directors. Members of our Board of Directors are
divided into three classes and serve staggered three-year terms under our
Restated Certificate of Incorporation. This means that only approximately
one-third of our directors are elected at each annual meeting of stockholders
and that it would take two years to replace a majority of the directors unless
they are removed. Under our Restated Certificate of Incorporation, directors can
be removed from office during their terms only if holders of at least 50% of our
outstanding voting stock, voting together as one class, approve the removal.
Holders of at least 80% of our outstanding voting stock, voting together as one
class, must approve any proposal to amend or repeal, or adopt any provisions
inconsistent with, this provision of our Restated Certificate of Incorporation
unless such proposal is approved by 66.67% of the members of our Board of
Directors who are continuing directors according to our
26
<PAGE> 28
Restated Certificate of Incorporation, in which case holders of at least a
majority of the outstanding voting stock entitled to vote may approve such a
proposal.
Restriction on Stockholder Actions by Written Consent. Our Restated
Certificate of Incorporation provides that any action required or permitted to
be taken by the stockholders must be effected at a duly called annual or special
meeting of stockholders and not by any consent in writing. Our Restated
Certificate of Incorporation and bylaws each provide that special meetings of
the stockholders may only be called by the Board of Directors. Holders of at
least 80% of our outstanding voting stock, voting together as one class, must
approve any proposal to amend or repeal, or adopt any provision inconsistent
with, these provisions of our Restated Certificate of Incorporation and bylaws,
unless such proposal is approved by 66.67% of the members of our Board of
Directors who are continuing directors according to our Restated Certificate of
Incorporation, in which case holders of at least a majority of the outstanding
voting stock entitled to vote may approve such proposal.
Advance Notice Requirements for Director Nominations and Stockholder
Proposals. Stockholders can nominate candidates for our Board of Directors.
However, a stockholder must follow the advance notice procedures described in
our bylaws. In general, a stockholder must submit a written notice of the
nomination to our Corporate Secretary at least 90 days before a scheduled annual
meeting of our stockholders or within 10 days after a stockholder receives
notice of a special meeting. The notice must set forth such information about
the stockholder making the nomination and the nominee as is specifically
required in the bylaws.
Stockholders can propose that business other than nominations to our Board
of Directors be considered at an annual meeting of stockholders only if a
stockholder follows the advance notice procedures described in our bylaws. In
general, a stockholder must submit a written notice of the proposal and the
stockholder's interest in the proposal at least 60 days before the date set for
the annual meeting of our stockholders.
Directors' Ability to Amend Bylaws. Under our bylaws, our Board of
Directors can adopt, amend or repeal the bylaws, subject to limitations under
Delaware law and our Restated Certificate of Incorporation. Pursuant to our
Restated Certificate of Incorporation, a majority of our Board of Directors may
not amend or repeal bylaw provisions relating to:
- the calling of special meetings of the stockholders;
- actions by stockholders without a meeting;
- agenda matters to be presented at stockholders' meetings;
- elections of directors; and
- indemnification of officers and directors, all of which may be amended or
repealed only by the vote of at least 80% of all shares entitled to vote
or by the vote of at least 66.67% of the members of our Board of
Directors who are continuing directors according to our Restated
Certificate of Incorporation.
Our stockholders also have the power to change or repeal our bylaws.
Additional Authorized Shares of Capital Stock. Additional shares of
authorized common stock and preferred stock available for issuance under our
Restated Certificate of Incorporation could be issued at such times, under such
circumstances and with such terms and conditions as to impede a change in
control of Fidelity.
27
<PAGE> 29
PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus through
agents, through underwriters or dealers or directly to one or more purchasers.
The applicable prospectus supplement will describe the terms of the offering of
the securities, including:
- the name or names of the underwriters, if any;
- the purchase price of the securities and the proceeds we will receive
from the sale;
- any underwriting discounts and other items which may be underwriters'
compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchange or market on which the securities may be listed.
Underwriters, dealers and agents that participate in the distribution of
the securities offered pursuant to this prospectus may be underwriters as
defined in the Securities Act of 1933 and any discounts or commissions received
by them from us and any profit on the resale of the offered securities by them
may be treated as underwriting discounts and commissions under the Securities
Act. Any underwriters or agents will be identified and their compensation,
including underwriting discount, will be described in the applicable prospectus
supplement. The prospectus supplement will also describe other terms of the
offering, including any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchanges on which the offered securities may be
listed.
The distribution of the securities offered under this prospectus may occur
from time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
If the applicable prospectus supplement indicates, we will authorize
dealers or our agents to solicit offers by certain institutions to purchase
offered securities from us pursuant to contracts that provide for payment and
delivery on a future date.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make as a result of those
certain civil liabilities.
When we issue the securities offered by this prospectus, except for shares
of common stock, they may be new securities without an established trading
market. If we sell a security offered by this prospectus to an underwriter for
public offering and sale, the underwriter may make a market for that security,
but the underwriter will not be obligated to do so and could discontinue any
market making without notice at any time. Therefore, we cannot give any
assurances to you concerning the liquidity of any security offered by this
prospectus.
Underwriters and agents and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiaries in the
ordinary course of their businesses.
28
<PAGE> 30
LEGAL OPINIONS
The validity of the securities offered by this prospectus and certain legal
matters relating thereto will be passed upon for Fidelity National Financial,
Inc. by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport
Beach, California.
EXPERTS
The Consolidated Financial Statements of Fidelity National Financial, Inc.
as of December 31, 1998 and 1997, and for each of the years in the three year
period ended December 31, 1998, have been incorporated by reference herein and
in the registration statement in reliance upon the report of KPMG LLP,
independent auditors, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
29
<PAGE> 31
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
, 1999
FIDELITY NATIONAL LOGO
FIDELITY NATIONAL FINANCIAL, INC.
$400,000,000
DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY SHARES OR COMMON STOCK
----------------------------------
PROSPECTUS
----------------------------------
- --------------------------------------------------------------------------------
We have not authorized any dealer, salesperson or other person to give you
written information other than this prospectus or to make representations as to
matters not stated in this prospectus. You must not rely on unauthorized
information. This prospectus is not an offer to sell these securities or our
solicitation of your offer to buy the securities in any jurisdiction where that
would not be permitted or legal. Neither the delivery of this prospectus nor any
sales made hereunder after the date of this prospectus shall create an
implication that the information contained herein or the affairs of the company
have not changed since the date hereof.
- --------------------------------------------------------------------------------
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Fee............... $105,600
Accounting Fees and Expenses......................... $ *
Legal Fees and Expenses.............................. $ *
Printing Expenses.................................... $ *
Miscellaneous Expenses............................... $ *
--------
Total...................................... $
========
</TABLE>
- -------------------------
* To be provided by amendment or as an exhibit to a filing with the SEC under
Section 13(a), 13(c), or 15(d) under the Securities Exchange Act of 1934.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation limits, to the maximum extent
permitted by Delaware law, the personal liability of directors for monetary
damages for breach of their fiduciary duties as a director. The Registrant's
Bylaws provide that the Registrant shall indemnify its officers and directors
and may indemnify its employees and other agents to the fullest extent permitted
by Delaware law.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person made a party to an action (other than an
action by or in the right of the corporation) by reason of the fact that he or
she was a director, officer, employee or agent of the corporation or was serving
at the request of the corporation 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 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 the corporation and, with respect to any criminal action
(other than an action by or in the right of the corporation), has no reasonable
cause to believe his or her conduct was unlawful.
The directors and officers of the Company are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities arising
under the Securities Act, which might be incurred by them in such capacities and
against which they cannot be indemnified by the Company.
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Common Stock*
1.3 Form of Underwriting Agreement for Preferred Stock*
1.4 Form of Underwriting Agreement for Depositary Shares*
</TABLE>
II-1
<PAGE> 33
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation of the Registrant**
3.2 Bylaws of the Registrant, as amended to date**
4.1 Form of Indenture for Convertible Debt Securities**
4.2 Form of Indenture for Senior Debt Securities
4.3 Form of Certificate of Designations of Preferred Stock**
4.4 Form of Deposit Agreement with respect to the Depositary
Shares**
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation
12.1 Computations of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG LLP
23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)
24.1 Powers of Attorney**
25.1 Statement of Eligibility and Qualification on Form T-1 of
Trustee to act as Trustee under the indenture*
</TABLE>
- -------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K to
be filed by the Company in connection with a specific offering pursuant to
Item 601 of Regulation S-K under the Securities Act.
** 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 recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is
II-2
<PAGE> 34
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(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 foregoing provisions, 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 the 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 the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-3
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Fidelity
National Financial, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Amendment No. 5 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irvine, State of
California, on the 20th day of December, 1999.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ WILLIAM P. FOLEY, II
------------------------------------
William P. Foley, II
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 5 to the Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ WILLIAM P. FOLEY, II Chairman of the Board and December 20, 1999
- --------------------------------------- Chief Executive Officer
William P. Foley, II (Principal Executive
Officer)
/s/ FRANK P. WILLEY President and Director December 20, 1999
- ---------------------------------------
Frank P. Willey
/s/ ALAN L. STINSON Executive Vice President and December 20, 1999
- --------------------------------------- Chief Financial Officer
Alan L. Stinson (Principal Financial and
Accounting Officer)
* Director December 20, 1999
- ---------------------------------------
William A. Imparato
* Director December 20, 1999
- ---------------------------------------
Donald M. Koll
Director
- ---------------------------------------
Daniel D. Lane
* Director December 20, 1999
- ---------------------------------------
General William Lyon
* Director December 20, 1999
- ---------------------------------------
J. Thomas Talbot
* Director December 20, 1999
- ---------------------------------------
Cary H. Thompson
</TABLE>
*By: /s/ WILLIAM P. FOLEY, II
----------------------------------------
William P. Foley, II, Attorney-in-Fact
<PAGE> 36
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Common Stock*
1.3 Form of Underwriting Agreement for Preferred Stock*
1.4 Form of Underwriting Agreement for Depositary Shares*
3.1 Restated Certificate of Incorporation of the Registrant**
3.2 Bylaws of the Registrant, as amended to date**
4.1 Form of Indenture for Convertible Debt Securities**
4.2 Form of Indenture for Senior Debt Securities
4.3 Form of Certificate of Designations of Preferred Stock**
4.4 Form of Deposit Agreement with respect to the Depositary
Shares**
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation
12.1 Computations of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG LLP
23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)
24.1 Powers of Attorney**
25.1 Statement of Eligibility and Qualification on Form T-1 of
Trustee to act as Trustee under the indenture*
</TABLE>
- -------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K to
be filed by the Company in connection with a specific offering pursuant to
Item 601 of Regulation S-K of the Securities Act.
** Previously filed.
<PAGE> 1
EXHIBIT 4.2
FIDELITY NATIONAL FINANCIAL, INC.
TO
[TRUSTEE]
INDENTURE
--------------------------------
DATED AS OF
--------------------------------
PROVIDING FOR ISSUANCE OF SECURITIES IN SERIES
<PAGE> 2
Reconciliation and tie between Indenture, dated as of _________, and the Trust
Indenture Act of 1939, as amended.
Trust Indenture Act of 1939 Section Indenture Section
----------------------------------- -----------------
310(a) 6.10(d)(2)
310(a)(1) 6.12
(a)(2) 6.12
(b) 6.3; 6.10(d)(1); 6.12(b)
311 6.3
312(a) 6.8
313 1.1 ("Outstanding" definition)
313(a) 6.7
(c) 6.6; 6.7; 9.6(c)
(d) 6.7
314(a) 9.6; 9.7
(c)(1) 1.2
(c)(2) 1.2
(e) 1.2
(f) 9.7
315(a)-(d) 3.3
315(a) 6.1
(b) 6.6
(c) 6.1(b)
(d) 6.1
(e) 6.10(d); 5.15
316(a)(last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(c) 1.11
- ----------
This reconciliation and tie section does not constitute part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1 Definitions and Other Provisions of General Application.......................................1
1.1 Definitions...................................................................................1
1.2 Compliance Certificates and Opinions.........................................................11
1.3 Form of Documents Delivered to Trustee.......................................................12
1.4 Acts of Holders..............................................................................12
1.5 Notices, etc., to Trustee and Company........................................................14
1.6 Notice to Holders; Waiver....................................................................14
1.7 Headings and Table of Contents...............................................................15
1.8 Successors and Assigns.......................................................................15
1.9 Separatability...............................................................................16
1.10 Benefits of Indenture........................................................................16
1.11 Governing Law................................................................................16
1.12 Legal Holidays...............................................................................16
ARTICLE 2 Security Forms...............................................................................16
2.1 Forms Generally..............................................................................16
2.2 Form of Trustee's Certificate of Authentication..............................................17
2.3 Securities in Global Form....................................................................17
2.4 Form of Legend for Securities in Global Form.................................................18
ARTICLE 3 The Securities...............................................................................19
3.1 Amount Unlimited; Issuable in Series.........................................................19
3.2 Denominations................................................................................22
3.3 Execution, Authentication, Delivery and Dating...............................................22
3.4 Temporary Securities.........................................................................25
3.5 Registration, Transfer and Exchange..........................................................26
3.6 Replacement Securities.......................................................................30
3.7 Payment of Interest; Interest Rights Preserved...............................................31
3.8 Persons Deemed Owners........................................................................33
3.9 Cancellation.................................................................................34
3.10 Computation of Interest......................................................................34
3.11 CUSIP Numbers................................................................................34
3.12 Currency of Payment in Respect of Securities.................................................34
ARTICLE 4 Satisfaction, Discharge and Defeasance.......................................................35
4.1 Termination of Company's Obligations Under the Indenture.....................................35
4.2 Application of Trust Funds...................................................................36
</TABLE>
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TABLE OF CONTENTS (CONT'D)
<TABLE>
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4.3 Applicability of Defeasance Provisions; Company's Option to Effect Defeasance
or Covenant Defeasance.......................................................................36
4.4 Defeasance...................................................................................37
4.5 Covenant Defeasance..........................................................................38
4.6 Conditions to Defeasance or Covenant Defeasance..............................................38
4.7 Deposited Money and Government Obligations to Be Held in Trust...............................40
4.8 Repayment to Company.........................................................................41
4.9 Indemnity for Government Obligations.........................................................41
4.10 Reinstatement................................................................................41
ARTICLE 5 Defaults and Remedies........................................................................42
5.1 Events of Default............................................................................42
5.2 Acceleration; Rescission and Annulment.......................................................44
5.3 Collection of Indebtedness and Suits for Enforcement by Trustee..............................45
5.4 Trustee May File Proofs of Claim.............................................................46
5.5 Trustee May Enforce Claims Without Possession of Securities or Coupons.......................47
5.6 Delay or Omission Not Waiver.................................................................47
5.7 Waiver of Past Defaults......................................................................47
5.8 Control by Majority..........................................................................47
5.9 Limitation on Suits by Holders...............................................................48
5.10 Rights of Holders to Receive Payment.........................................................48
5.11 Application of Money Collected...............................................................49
5.12 Restoration of Rights and Remedies...........................................................49
5.13 Rights and Remedies Cumulative...............................................................49
5.14 Waiver of Stay or Extension Laws.............................................................50
5.15 Undertaking for Costs........................................................................50
ARTICLE 6 The Trustee..................................................................................51
6.1 Certain Duties and Responsibilities of the Trustee...........................................51
6.2 Rights of Trustee............................................................................51
6.3 Trustee May Hold Securities..................................................................52
6.4 Money Held in Trust..........................................................................52
6.5 Trustee's Disclaimer.........................................................................53
6.6 Notice of Defaults...........................................................................53
6.7 Reports by Trustee to Holders................................................................53
6.8 Securityholder Lists.........................................................................53
6.9 Compensation and Indemnity...................................................................54
6.10 Replacement of Trustee.......................................................................55
</TABLE>
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TABLE OF CONTENTS (CONT'D)
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6.11 Acceptance of Appointment by Successor.......................................................56
6.13 Merger, Conversion, Consolidation or Succession to Business..................................58
6.14 Appointment of Authenticating Agent..........................................................58
ARTICLE 7 Consolidation, Merger or Sale by the Company.................................................60
7.1 Consolidation, Merger or Sale of Assets Permitted............................................60
7.2 Successor Person Substituted for Company.....................................................61
ARTICLE 8 Supplemental Indentures......................................................................61
8.1 Supplemental Indentures Without Consent of Holders...........................................61
8.2 Supplemental Indentures With Consent of Holders..............................................63
8.3 Compliance with Trust Indenture Act..........................................................64
8.4 Execution of Supplemental Indentures.........................................................64
8.5 Effect of Supplemental Indentures............................................................64
8.6 Reference in Securities to Supplemental Indentures...........................................65
ARTICLE 9 Covenants....................................................................................65
9.1 Payment of Principal, Premium, if any, and Interest..........................................65
9.2 Maintenance of Office or Agency..............................................................65
9.3 Money for Securities Payments to Be Held in Trust; Unclaimed Money...........................67
9.4 Corporate Existence..........................................................................68
9.5 Insurance....................................................................................68
9.6 Reports by the Company.......................................................................68
9.7 Annual Review Certificate; Notice of Defaults or Events of Default...........................69
9.8 Limitation on Liens..........................................................................69
9.9 Books of Record and Account; Compliance with Law.............................................72
9.10 Taxes........................................................................................72
9.11 Additional Amounts...........................................................................72
ARTICLE 10 Redemption...................................................................................73
10.1 Applicability of Article.....................................................................73
10.2 Election to Redeem; Notice to Trustee........................................................74
10.3 Selection of Securities to Be Redeemed.......................................................74
10.4 Notice of Redemption.........................................................................74
10.5 Deposit of Redemption Price..................................................................76
10.6 Securities Payable on Redemption Date........................................................76
10.7 Securities Redeemed in Part..................................................................77
</TABLE>
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ARTICLE 11 Sinking Funds................................................................................77
11.1 Applicability of Article.....................................................................77
11.2 Satisfaction of Sinking Fund Payments with Securities........................................78
11.3 Redemption of Securities for Sinking Fund....................................................78
</TABLE>
This Table of Contents does not constitute part of the Indenture.
iv
<PAGE> 7
INDENTURE, dated as of ________, from Fidelity National Financial,
Inc., a Delaware corporation (the "Company"), to [Name of Trustee] (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act" shall have the meaning set forth in Section 1.4(a).
"Additional Amounts" means any additional amounts which, pursuant to
Section 3.1(b)(18), are required by the terms of the Securities of any series,
under circumstances specified pursuant to Section 3.1(b)(18), to be paid by the
Company in respect of certain
<PAGE> 8
taxes, assessments or similar governmental charges imposed on certain Holders of
the Securities of such series specified pursuant to Section 3.1(b)(18).
"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 purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bankruptcy Law" shall have the meaning set forth in Section 5.1.
"Bearer Security" means any Security issued hereunder which is payable
to bearer.
2
<PAGE> 9
"Board" or "Board of Directors" means the Board of Directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, 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 the certificate, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law 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, 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.
"Company" means the party named as the Company in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, the Controller or any Vice President of
the Company.
"Consolidated Net Tangible Assets" means, with respect to the Company
as at any date, the total assets of the Company and its consolidated
Subsidiaries determined in accordance with GAAP as they appear on the most
recently prepared consolidated balance sheet of the Company as of the end of a
fiscal quarter, less (i) all liabilities shown on such consolidated balance
sheet that are classified and accounted for as current liabilities or that
otherwise would be considered current liabilities under GAAP; and (ii) all
assets shown on such consolidated balance sheet that are classified and
accounted for as intangible assets or that otherwise would be considered
intangible assets under GAAP, including, without limitation, franchises, patents
and patent applications, trademarks, brand names and goodwill.
"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
3
<PAGE> 10
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 office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at ________________
___________________________, Attention: Corporate Trust Administration.
"Currency" means Dollars or any Foreign Currency.
"Custodian" shall have the meaning set forth in Section 5.1.
"Debt" means indebtedness for borrowed money or evidenced by bonds,
notes, debentures or other similar instruments.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section
3.7(b).
"Depository" when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depository by the Company pursuant to Section 3.1 and its
successors in such capacity, and if at any time there is more than one such
Person, shall be a collective reference to such Persons.
"Dollar" and "$" mean the currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit 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.
"European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" shall have the meaning set forth in Section 5.1.
4
<PAGE> 11
"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.
"Funded Debt" means Debt of the Company or any of its Subsidiaries
which, under GAAP, would appear as indebtedness on the most recent consolidated
balance sheet of the Company, which matures by its terms more than 12 months
from the date of such consolidated balance sheet or which matures by its terms
in less than 12 months but by its terms is renewable or extendible beyond 12
months from the date of such consolidated balance sheet at the option of the
borrower.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of application thereof.
"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 the relevant Security 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 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.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
of a coupon appertaining thereto and, with respect to a Registered Security, a
person in whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
5
<PAGE> 12
"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" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means interest
payable after maturity.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of any
nature whatsoever.
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repurchase by the Company at
the option of the Holder or otherwise.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the Company, means a
certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Controller or a Vice President of the Company.
"Opinion of Counsel" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
6
<PAGE> 13
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
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 provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have 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, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, (b) 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, (c) 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 (a) above) of such Security, and (d) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
7
<PAGE> 14
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, business trust,
partnership, joint venture, joint-stock company, limited liability company,
association, company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, and interest on such Securities are payable as specified or contemplated by
Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal amount", when used with respect to any Security, means the
amount of principal, if any, payable in respect thereof at Maturity; provided,
however, that when used with respect to an Indexed Security in any context other
than the making of payments at Maturity, "principal amount" means the principal
face amount of such Indexed Security at original issuance.
8
<PAGE> 15
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Register" shall have the meaning set forth in Section 3.5.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Registrar" shall have the meaning set forth in Section 3.5.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, shall
mean the president, any senior vice president, any vice president, any assistant
vice president, any senior trust officer, any trust officer, or any officer of
the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company which (i)
owns or leases a Principal Property and (ii) (A) substantially all of the
property of which is located, or substantially all of the business of which is
carried on, within the United States of America or (B) which is incorporated or
organized under the laws of any state of the United States of America or the
District of Columbia.
9
<PAGE> 16
"Secured Debt" shall have the meaning set forth in Section 9.8(a).
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means (i) any corporation, at least a majority of the
total voting power of whose outstanding Voting Stock is at the date of
determination owned, directly or indirectly, by the Company and/or one or more
other Subsidiaries of the Company, and (ii) any Person (other than a
corporation) in which the Company and/or one or more other Subsidiaries of the
Company own, directly or indirectly, at the date of determination, at least a
majority ownership interest.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided with respect to the
Securities of any series as contemplated by Section 3.1, 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.
10
<PAGE> 17
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, any estate the income of
which is subject to United States federal income taxation regardless of its
source, or any trust whose administration is subject to the primary supervision
of a United States court and which has one or more United States fiduciaries who
have the authority to control all substantial decisions of the trust.
"Voting Stock" means, with respect to any corporation, securities of
any class or series of such corporation, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of directors of
the corporation.
Section 1.2 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.7 and the last paragraph of Section 3.3) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 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,
11
<PAGE> 18
it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his
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authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depository, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depository, 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 (i) another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other manner which the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. 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 record at the
close of business on such record date shall be deemed to be Holders for the
purposes 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
on such record date 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.
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Section 1.5 Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and sent by overnight delivery
service or mailed, first-class postage prepaid, to the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and sent by overnight delivery
service or mailed, first-class postage prepaid, to the Company
addressed to it at Fidelity National Financial, Inc., 17911 Von Karman
Avenue, Suite 300, Irvine, California 92614, Attention: Chief Financial
Officer or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein or in the terms of such
Registered Security expressly provided) if in writing and sent by overnight
delivery service or mailed, first-class postage prepaid, to each such Holder
affected by such event, at his address as it appears in the Register, within the
time prescribed for the giving of such notice, and (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In any case where notice is given to Holders by
publication, neither the failure to publish such notice, nor any defect in any
notice so published, shall affect the sufficiency of such notice with respect to
other Holders of Bearer Securities or the sufficiency of any notice to Holders
of Registered Securities given as provided herein. Any notice mailed to a Holder
in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
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If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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 equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7 Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8 Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successor and assigns, whether so
expressed or not.
Section 1.9 Separability. In case any provision of this Indenture or
the Securities shall be invalid, illegal or unenforceable, then, to the extent
permitted by applicable law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10 Benefits of Indenture. Nothing in this Indenture or in the
Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11 Governing Law. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Indenture is subject to
the Trust Indenture Act and if any provision hereof limits, qualifies or
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
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Section 1.12 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu of this Section), payment of
principal, premium, if any, or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on such date;
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. Unless otherwise provided as contemplated in Section 3.1,
Securities will be issued only in registered form without coupons or in the form
of one or more global securities. If temporary Securities of any series are
issued as permitted by Section 3.4, the form thereof also shall be established
as provided in the preceding sentence. If the forms of Securities and coupons,
if any, of any series are established by, or by action taken pursuant to, a
Board Resolution, a copy of the Board Resolution together with an appropriate
record (which may be in the form of an Officers' Certificate) of any such action
taken pursuant thereto, including a copy of the approved form of Securities or
coupons, if any, shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and delivery of
such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as
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determined by the officers executing such Securities and coupons, if any, as
evidenced by their execution of such Securities and coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
By
--------------------------------------
Authorized Signatory
Section 2.3 Securities in Global Form. If Securities of or within a
series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate or specified amount of Outstanding
Securities 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 reduced to reflect exchanges. Any endorsement of a 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 pursuant to Section 3.1 or in the Company Order to be delivered to
the Trustee pursuant to Section 3.3 or 3.4. 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 pursuant to Section 3.1 or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
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Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be made to the
Person or Persons specified therein.
Section 2.4 Form of Legend for Securities in Global Form. Any Security
in global form authenticated and delivered hereunder shall bear a legend in
substantially the following form and such other legends as may be approved by
the officers executing such Security, as evidenced by their execution thereof:
This Security is in global form within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. Unless and until it is exchanged in whole
or in part for Securities in certificated form, this Security may not
be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
Depository.
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued from time to time in one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
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<PAGE> 25
to Section 3.4, 3.5, 3.6, 8.6, or 10.7 or upon the Company's repurchase
of any Securities in part at the option of the Holders thereof);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed, variable or zero)
at which the Securities of the series shall bear interest, if any, or
the method of calculating such rate or rates of interest;
(5) the date or dates from which interest, if any, shall
accrue or the method by which such date or dates shall be determined;
(6) the Interest Payment Dates on which any such interest, if
any, shall be payable and, with respect to Registered Securities, the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date;
(7) each Place of Payment for the Securities of the series;
(8) the period or periods within which, the price or prices at
which, the currency (if other than Dollars) in which, and the other
terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if
other than as provided in Section 10.3, the manner in which the
particular Securities of such series (if less than all Securities of
such series are to be redeemed) are to be selected for redemption;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the
denomination of $5,000, if Bearer Securities, the denominations in
which Securities of the series shall be issuable;
(11) if other than Dollars, the currency for which the
Securities of the series may be purchased or in which the Securities of
the series shall be denominated and/or the currency in which the
principal of, premium, if any, and interest, if any, on the Securities
of the series shall be payable and the particular
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provisions applicable thereto in accordance with, in addition to, or in
lieu of the provisions of this Indenture;
(12) if the amount of payments of principal of, or premium, if
any, or interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amount shall be determined;
(13) if the amount of payments of principal, premium, if any,
or interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method based on
the prices of securities or commodities, with reference to changes in
the prices of securities or commodities or otherwise by application of
a formula, the index, formula or other method by which such amount
shall be determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(15) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any addition to or modification or deletion of any Events
of Default or any covenants of the Company pertaining to the Securities
of the series;
(18) under what circumstances, if any, the Company will pay
Additional Amounts on the Securities of that series held by a Person
who is not a U.S. Person in respect of taxes, assessments or similar
governmental charges withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(19) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any
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restrictions applicable to the offering, sale or delivery of Bearer
Securities and, if other than as provided in Section 3.5, the terms
upon which Bearer Securities of a series may be exchanged for
Registered Securities of the same series and vice versa;
(20) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(21) the forms of the Securities and coupons, if any, of the
series;
(22) if either or both of Section 4.4 relating to defeasance
or Section 4.5 relating to covenant defeasance shall not be applicable
to the Securities of such series, or, if such defeasance or covenant
defeasance shall be applicable to the Securities of such series, any
covenants in addition to those specified in Section 4.5 relating to the
Securities of such series which shall be subject to covenant defeasance
and any deletions from, or modifications or additions to, the
provisions of Article 4 in respect of the Securities of such series or
such other means of defeasance or covenant defeasance as may be
specified for the Securities of such series;
(23) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(24) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depository for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any
authorized form and denomination, and (iii) if other than as provided
in Section 3.5, the circumstances under which any such exchange may
occur; and
(25) any other terms of the Securities of such series and any
deletions from or modifications or additions to this Indenture in
respect of such Securities.
(c) All Securities of any one series and coupons, if any, appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant
to a Board Resolution and (subject to Section 3.3) set forth, or determined in
the manner provided, in the related Officers' Certificate or (iii) in an
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
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reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
(d) If any of the terms of the Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken
pursuant thereto in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2 Denominations. Unless otherwise provided as contemplated by
Section 3.1, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in denominations of $5,000.
Section 3.3 Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by two Officers. The Company's seal
shall be reproduced on the Securities. The signatures of any of these Officers
on the Securities may be manual or facsimile. The coupons, if any, of Bearer
Securities shall bear the facsimile signature of two Officers.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver Securities,
together with any coupons appertaining thereto, of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of Securities of such
series.
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If the form or terms of the Securities of a series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Sections 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or in the case of Securities of
a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject in the case
of Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Securities if, in the
written opinion of counsel to the Trustee (which counsel may be an employee of
the Trustee) reasonably acceptable to the Company, the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
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With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legend contemplated by Section 2.4.
Each Depository designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934 or any successor thereto (if so required by
applicable law or regulation) and any other applicable statute or regulation.
The Trustee shall have no responsibility to determine if the Depository is so
registered.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 and need not be
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accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and, upon Company Order, the
Trustee shall authenticate and deliver temporary Securities of such series which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form, with or
without coupons, of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (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 the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the Person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in or pursuant to the Board Resolutions relating thereto and such
delivery shall occur only outside the United States. 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 except as
otherwise specified as contemplated by Section 3.1.
Section 3.5 Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may
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prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered Securities. The
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. The Trustee is hereby appointed
"Registrar" for the purpose of registering Registered Securities and transfers
of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at such office or agency. 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. Unless otherwise specified as contemplated by
Section 3.1, Bearer Securities may not be issued in exchange for Registered
Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, 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 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 any Paying Agent any such missing
coupon in respect of which such a payment shall have been
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<PAGE> 33
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 9.2, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series 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, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon,
when due in accordance with the provisions of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive certificated
form, a Security in global form representing all or a portion of the Securities
of a series may not be transferred except as a whole by the Depository for such
series to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by such Depository or
any such nominee to a successor Depository for such series or a nominee of such
successor Depository.
Unless otherwise specified pursuant to Section 3.1 with respect to the
Securities of any series, a Security in global form will be exchangeable for
certificated Securities of the same series in definitive form only if (i) the
Depository for the Global Securities of such series notifies the Company that it
is unwilling or unable to continue as Depository for the global Securities of
such series or such Depository ceases to be a clearing agency registered as such
under the Securities Exchange Act of 1934, as amended, or any successor thereto
if so required by applicable law or regulation and, in either case, a successor
Depository for such Securities shall not have been appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, as the case may be, (ii) the Company, in its sole discretion,
determines that such Securities in global form shall be exchangeable for
certificated Securities and executes and delivers to the Trustee a Company Order
to the effect that such global Securities shall be so exchangeable, or (iii)
there shall have occurred and be continuing an Event of Default with respect to
the Securities of such series, the Company's election pursuant to Section
3.1(b)(24) shall no longer be effective with respect to the Securities of such
series and the Company shall execute, and the Trustee, upon receipt of a Company
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Order for the authentication and delivery of certificated Securities of such
series of like tenor and terms, shall authenticate and deliver, without charge,
Securities of such series of like tenor and terms in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor and
terms in global form in exchange for such Security or Securities in global form.
Upon any such exchange, owners of beneficial interests in such Securities in
global form will be entitled to physical delivery of individual Securities in
certificated form of like tenor and terms equal in principal amount to such
beneficial interests, and to have such Securities in certificated form
registered in the names of the beneficial owners.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depository for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new
certificated Security or Securities of the same series of like tenor
and terms, of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Security in global form; and
(ii) to such Depository a new Security in global form of like
tenor and terms in a denomination equal to the difference, if any,
between the principal amount of the surrendered Security in global form
and the aggregate principal amount of certificated Securities delivered
to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or upon any exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee 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 for
any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 8.6, or 10.7 or upon the Company's
repurchase of any Securities in part at the option of the Holder thereof not
involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Securities for a period beginning at the opening of business
15 days before any selection for redemption of Securities of like tenor and of
the series of which such Security is a part and ending at the close of business
on the earliest date on which the relevant notice of redemption is deemed to
have been given to all Holders of Securities of like tenor and of such series to
be redeemed; (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part; or (iii) to exchange any Bearer
Security so selected for redemption, except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for redemption.
Section 3.6 Replacement Securities. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series, terms and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
Security with a destroyed,
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lost or stolen 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 the
Trustee shall authenticate and deliver in lieu of any such 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 replacement Registered Security, if such Holder's claim appertains to
a Registered Security, or a replacement Bearer Security with coupons
corresponding to the coupons appertaining to the destroyed, lost or stolen
Bearer Security or the Bearer Security to which such lost, destroyed or stolen
coupon appertains, if such Holder's claim appertains to a Bearer Security, of
the same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to the destroyed, lost or
stolen Security.
In case any such 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 or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities 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 of any series with its coupons, if any, 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 an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, 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 that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
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Section 3.7 Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest,
if any, on any Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency maintained for such purpose pursuant to 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to the address of
the Persons entitled thereto as they shall appear on the Register of Holders of
Securities of such series or (ii) by transfer to an account maintained by the
Persons entitled thereto.
Unless otherwise provided as contemplated by Section 3.1 and except as
otherwise provided in Section 9.2, (i) interest, if any, on Bearer Securities
shall be paid only against presentation and surrender of the coupons for such
interest installments as are evidenced thereby as they mature and (ii) original
issue discount, if any, on Bearer Securities shall be paid only against
presentation and surrender of such Securities, in either case at the office of a
Paying Agent located outside the United States, unless the Company shall have
otherwise instructed the Trustee in writing, provided that any such instruction
for payment in the United States does not cause any Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations. The interest, if any, on any temporary Bearer Security shall be
paid, as to any installment of interest evidenced by a coupon attached thereto
only upon presentation and surrender of such coupon and, as to other
installments of interest, only upon presentation of such Security for notation
thereon of the payment of such interest.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Registered Securities of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holders
on the relevant Regular Record Date by virtue of their having been such Holders,
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 such Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to
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be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of such Registered Securities at his address as
it appears in the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
(c) 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.
Section 3.8 Persons Deemed Owners. Prior to due presentment of any
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 as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Section 3.7) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of
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such Bearer Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever, whether or not such
Bearer Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.
Section 3.9 Cancellation. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may, but shall not be required to, dispose of canceled
Securities and coupons and issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
Section 3.10 Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, in such case, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. Neither the
Company nor the Trustee shall have any responsibility for any defect in the
CUSIP number that appears on any Security, check, advice of payment or
redemption notice.
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Section 3.12 Currency of Payment in Respect of Securities. Unless
otherwise specified with respect to any Securities pursuant to Section 3.1,
payment of the principal of, premium, if any, and interest, if any, on any
Registered or Bearer Security of such series will be made in Dollars.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1 Termination of Company's Obligations Under the Indenture.
This Indenture shall upon a Company Request cease to be of further effect with
respect to Securities of any series and any coupons appertaining thereto (except
as specified below) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any coupons appertaining thereto
when
(1) either
(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto (other than (i) such coupons
appertaining to Bearer Securities surrendered in exchange for Registered
Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 3.5, (ii) such Securities and coupons
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6, (iii) such coupons appertaining to Bearer Securities
called for redemption and maturing after the relevant Redemption Date, surrender
of which has been waived as provided in Section 10.6 and (iv) such Securities
and coupons 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 9.3) have been delivered
to the Trustee for cancellation; or
(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
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giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, in respect of principal, premium, if any, and interest, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; 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.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
the Securities of any series, the obligation of the Company to the Trustee and
any predecessor Trustee under Section 6.9, the obligations of the Company to any
Authenticating Agent under Section 6.14 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 3.4, 3.5, 3.6, 4.2, 9.2 and 9.3 and with respect to
the payment of Additional Amounts, if any, with respect to such Securities as
contemplated by Section 3.1(b)(18) shall survive.
Section 4.2 Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 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 (other than the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, if any, and interest for whose payment such
money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
Section 4.3 Applicability of Defeasance Provisions; Company's Option to
Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 3.1 either
or both of (i) defeasance of the Securities of or within a series under Section
4.4 or (ii) covenant defeasance of the Securities of or within a series under
Section 4.5 shall not be applicable with respect to the Securities of any
series, then the provisions of such Section or
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Sections, as the case may be, together with the provisions of Sections 4.6
through 4.10 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to such 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 4.4 or Section 4.5 (unless
such Section 4.4 or Section 4.5, as the case may be, shall not be applicable to
the Securities of such series) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth below
in this Article. Unless otherwise specified pursuant to Section 3.1, the
Company's right, if any, to effect defeasance pursuant to Section 4.4 or
covenant defeasance pursuant to Section 4.5 may only be exercised with respect
to all of the Outstanding Securities of a series and any coupons appertaining
thereto.
Section 4.4 Defeasance. Upon the Company's exercise of the option
specified in Section 4.3 applicable to this Section with respect to the
Securities of a series, the Company shall be deemed to have been discharged from
its obligations with respect to such Securities and any coupons appertaining
thereto (except as specified below) on the date the conditions set forth in
Section 4.6 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 Securities and any coupons
appertaining thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.7 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all 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 on Company
Order execute proper instruments acknowledging the same), except the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Securities and any coupons appertaining thereto to
receive, solely from the trust funds described in Section 4.6(a) and as more
fully set forth in such Section and in Section 4.7, payments in respect of the
principal of, premium, if any, and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due; (ii) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 9.2
and 9.3 and with respect to the payment of Additional Amounts, if any, payable
with respect to such Securities as specified pursuant to Section 3.1(b)(18);
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Article 4. Subject to compliance with this Article 4, the Company
may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 4.5 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.
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Section 4.5 Covenant Defeasance. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with respect to any
Securities of a series, the Company shall be released from its obligations under
Sections 7.1, 9.4 (other than the Company's obligation to maintain its corporate
existence), 9.5, 9.8, 9.9 and 9.10 and, if specified pursuant to Section 3.1,
its obligations under any other covenant, with respect to such Securities and
any coupons appertaining thereto on and after the date the conditions set forth
in Section 4.6 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 Sections 7.1, 9.4 (other than the Company's obligation to
maintain its corporate existence), 9.5, 9.8, 9.9 and 9.10 and any such other
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 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(3) or 5.1(7) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.6 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.12 who shall agree in writing to comply with, and shall be entitled to
the benefits of, the provisions of Sections 4.3 through 4.10 inclusive and the
last paragraph of Section 9.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in an amount (in such currency
in which such Securities and any coupons appertaining thereto are then specified
as payable at Stated Maturity or, if such defeasance or covenant defeasance is
to be effected in compliance with Section 4.6(g) below, on the relevant
Redemption Date, as the case may be), or (B) if Securities of such series are
not subject to repayment or repurchase at the option of Holders, Government
Obligations applicable to such Securities and any coupons
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appertaining thereto (determined on the basis of the currency in which such
Securities and coupons, if any, are then specified as payable at Stated Maturity
or the applicable Redemption Date, as the case may be) which through the payment
of interest and principal in respect thereof in accordance with their terms will
provide (without consideration of any reinvestment of such principal and
interest), not later than one day before the due date of any payment referred to
in clause (x) or (y) of this Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, (x) the
principal of, and premium, if any, and interest, if any, on such Securities and
any coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest or on the applicable Redemption Date, as
the case may be, and (y) any mandatory sinking fund payments applicable to such
Securities on the day on which such payments are due and payable in accordance
with the terms of this Indenture and 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 or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) In the case of an election under Section 4.4, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
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.
(d) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such 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.
(e) 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 under
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Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be)
have been complied with.
(f) No Event of Default or Default with respect to such Securities or
any coupons appertaining thereto shall have occurred and be continuing on the
date of such deposit, or, insofar as Defaults in Events of Default under
Sections 5.1(5) and 5.1(6) are concerned, 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).
(g) If the monies or Government Obligations or combination thereof, as
the case may be, deposited under Section 4.6(a) above are sufficient to pay the
principal of, and premium, if any, and interest, if any, on such Securities and
coupons, if any, appertaining thereto provided such Securities are redeemed on a
particular Redemption Date, the Company shall have given the Trustee irrevocable
instructions to redeem such Securities on such date and to provide notice of
such redemption to Holders as provided in or pursuant to this Indenture.
(h) 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 as contemplated by
Section 3.1.
Section 4.7 Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, 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
pursuant to Section 4.6 in respect of any 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 (other than 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, premium, if any, and interest, 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
Securities, if, after a deposit referred to in Section 4.6(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 4.6(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 4.6(a) has been made, the indebtedness represented by such Security and
any
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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 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 monies or Government Obligations (or other property
and any proceeds therefrom) 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 Foreign 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.
Section 4.8 Repayment to Company. Anything in this Article 4 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 4.6(a)
with respect to the Securities of any series which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, of such Securities in
accordance with Section 4.6.
Section 4.9 Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest received on such Government Obligations.
Section 4.10 Reinstatement. If the Trustee or any Paying Agent is
unable to apply any monies or Government Obligations (or other property or any
proceeds therefrom) deposited pursuant to Section 4.6(a) in accordance with this
Indenture or the Securities of the applicable series by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 4.6(a) until such time as the Trustee or a Paying Agent is permitted to
apply such monies or Government Obligations (or other property or any proceeds
therefrom) in accordance with this Indenture and the Securities of such series;
provided, however, that if the Company makes any payment of principal of,
premium, if any, or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the cash and
Government Obligations(or other property or any proceeds therefrom) held by the
Trustee or Paying Agent.
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ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any 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 Section
3.1 of this Indenture:
(1) default in the payment of any interest on any Security of
that series or any coupon appertaining thereto, or any Additional
Amounts payable with respect to any Security of that series, when the
same becomes due and payable and continuance of such default for a
period of 30 days; or
(2) default in the payment of any principal of or premium, if
any, on any Security of that series when the same becomes due and
payable at its Maturity (whether at Stated Maturity, upon redemption,
repurchase at the option of the Holder or otherwise), or default in the
making of any mandatory sinking fund payment in respect of any
Securities of that series when and as due by the terms of the
Securities of that series; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security of such
series (other than a covenant or warranty for which the consequences of
breach or nonperformance are addressed elsewhere in this Section 5.1 or
a covenant or warranty which has expressly been included in this
Indenture, whether or not by means of a supplemental indenture, solely
for the benefit of Securities of a series other than such series), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate 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
(4) default under any bond, note, debenture or other evidence
of Debt of the Company (including an event of default with respect to
any other series of Securities), or under any mortgage, indenture or
other instrument under which there may be issued or by which there may
be secured or evidenced any Debt of
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the Company, whether such Debt exists on the date of this Indenture or
shall hereafter be incurred or created, which results in such Debt in
an aggregate principal amount exceeding $20,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, and such acceleration shall not be
rescinded or annulled or such Debt shall not be paid in full, or there
has not been deposited into trust a sum of money sufficient to pay in
full such Debt, 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
aggregate principal amount of the Outstanding Securities of such series
a written notice specifying such default and requiring the Company to
cause such acceleration to be rescinded or annulled or to pay in full
such Debt or to deposit into trust a sum of money sufficient to pay in
full such Debt and stating that such notice is a "Notice of Default"
hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or proceeding, (B)
consents to the entry of an order for relief against it in an
involuntary case or proceeding or to the commencement of any bankruptcy
or insolvency case or proceeding against it, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property; or (D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the
Company in an involuntary case, (B) appoints a Custodian of the Company
or for all or substantially all of its property, (C) orders the winding
up or liquidation of the Company , (D) adjudges the Company a bankrupt
or insolvent or (E) approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
to the Company; and any such order or decree described in this clause
(6) remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 5.2 Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of such series,
by written notice to the Company (and, if
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given by the Holders, to the Trustee), may declare the principal of (or, if the
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 of that series) and accrued interest, if any, on all the Securities of
that series to be due and payable and upon any such declaration such principal
(or, in the case of Original Issue Discount Securities or Indexed Securities,
such specified amount) and interest, if any, shall be immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to 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
(i) all overdue installments of interest on any Securities of
such series and any coupons appertaining thereto which have become due
otherwise than by such declaration of acceleration and any Additional
Amounts with respect thereto,
(ii) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto and, to
the extent permitted by applicable law, interest thereon at the rate or
rates borne by or provided for in such Securities,
(iii) to the extent permitted by applicable law, interest upon
installments of interest, if any, which have become due otherwise than
by such declaration of acceleration and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities, and
(iv) 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 6.9; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, 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
5.7.
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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 interest on any
Security or coupon, if any, or any Additional Amounts with respect to
any Security when the same becomes due and payable and such default
continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, interest and
Additional Amounts, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal, premium, if
any, interest and Additional Amounts, if any, at the rate or rates borne by or
prescribed therefor in such Securities or coupons, if any, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay 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 by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure 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,
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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,
(a) 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 such 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
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any Custodian 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 6.9.
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.
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Section 5.6 Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall, to the extent permitted by applicable law,
impair any such right or remedy or constitute a waiver of or acquiescence in any
such Event of Default. Every right and remedy given by this Article 5 or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustees or by the Holders of
Securities or coupons, as the case may be.
Section 5.7 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series by
written notice to the Trustee may waive on behalf of the Holders of all
Securities of such series any past Default or Event of Default with respect to
that series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, or premium, if any, or interest on, or Additional
Amounts, if any, with respect to, any Security of such series or any coupon
appertaining thereto or (ii) in respect of a covenant or provision hereof which
pursuant to Section 8.2 cannot be amended or modified without the consent of the
Holder of each Outstanding Security of such series affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture.
Section 5.8 Control by Majority. The Holders of a majority in aggregate
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 it
with respect to Securities of that series; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, (ii) the Trustee may refuse to follow any direction that is unduly
prejudicial to the rights of the Holders of Securities of such series not
consenting or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability and (iii)
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders. 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) the 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 at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to
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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
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series
have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
Section 5.10 Rights of Holders to Receive Payment. Notwithstanding any
other provision of 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, and premium, if any, and, subject to Sections 3.5 and 3.7,
interest on, and Additional Amounts, if any, with respect to, such Security and
such coupon on the respective due dates expressed in such Security or coupon
(or, in case of redemption, on the Redemption Date or, in the case of repurchase
by the Company at the option of such Holder, on any date such repurchase is due
to be made), and to institute suit for the enforcement of any such payment, and
such right, shall not be impaired or affected without the consent of such
Holder.
Section 5.11 Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money 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, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in respect of which or for
the benefit of which such money has been collected for amounts due and unpaid on
such Securities for principal, premium, if any, interest and Additional Amounts,
if any, ratably, without preference or priority of any kind, according to the
amounts due and
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payable on such Securities for principal, premium, if any, interest and
Additional Amounts, if any, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record date,
the Trustee shall mail to each holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.13 Rights and Remedies Cumulative. To the extent permitted by
applicable law and except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.14 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 (to the extent it
may lawfully do so) 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.
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Section 5.15 Undertaking for costs. All parties to this indenture
agree, and each holder of any security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this indenture, or in any suit
against the trustee for any action taken 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, or, in the case of
repurchase by the company at the option of the holder, on or after the date for
repurchase).
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default, the Trustee's
duties and responsibilities under this Indenture shall be governed by Section
315(a) of the Trust Indenture Act and no implied duties shall be inferred
against the Trustee.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
Section 6.2 Rights of Trustee. Subject to the provisions of the Trust
Indenture Act:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Trustee need not
investigate any fact or matter stated in the document but the Trustee may, in
its discretion, make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee
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shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney.
(b) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (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.
(c) Before the Trustee acts or refrains from acting, it may consult
with counsel (who may be in-house counsel) or require an Officers' Certificate.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel, who may
be an attorney for the Company, an Officers' Certificate or an Opinion of
Counsel.
(d) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(e) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(f) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(g) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
(h) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith and without negligence in accordance
with the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
(i) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to
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the Trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(j) The Trustee's rights to immunities and protection from liability
hereunder and its rights to payment of its fees and expenses shall survive its
resignation or removal.
Section 6.3 Trustee May Hold Securities. The Trustee, any Paying Agent,
any Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company and an Affiliate or Subsidiary of the Company with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.4 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing with the
Company.
Section 6.5 Trustee's Disclaimer. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity, adequacy or priority of this Indenture or the Securities or any
coupon. The Trustee shall not be accountable for the Company's use of the
proceeds from the Securities or for monies paid over to the Company pursuant to
the Indenture.
Section 6.6 Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities of any series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall, within 90 days after it occurs,
transmit by mail, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, notice of all Defaults known to it unless such Default
shall have been cured or waived; provided, however, that in the case of a
Default in payment on the Securities of any series, the Trustee may withhold the
notice if and so long as the board of directors, the executive committee or a
committee of its Responsible Officers in good faith determines that withholding
such notice is in the interests of Holders of Securities of that series; and
provided, further, that in the case of any Default of the character specified in
Section 5.1(3) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have notice of a Default or an Event
of Default unless (i) the Trustee has received written notice thereof from the
Company or any Holder or (ii) a Responsible Officer of the Trustee shall have
actual knowledge thereof. Except
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as otherwise expressly provided herein, the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein, or of any of the documents executed
in connection with the Securities, or as to the existence of a Default or an
Event of Default thereunder.
Section 6.7 Reports by Trustee to Holders. Within 60 days after each
November 15 of each year commencing with the first November 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such November 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act.
Section 6.8 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of any
series outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.9 Compensation and Indemnity.
(a) The Company shall pay to the Trustee such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it in connection with the performance of its duties under
this Indenture, except any such expense as may be attributable to its negligence
or bad faith. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability, damage, claim or reasonable expense including
taxes (other than taxes based upon or determined or measured by the income of
the Trustee) incurred by it arising out of or in connection with its acceptance
or administration of the trust or trusts hereunder, including the reasonable
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
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it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or willful
misconduct.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, in its capacity as
Trustee, except that held in trust to pay principal, premium, if any, and
interest on and Additional Amounts, if any, with respect to particular
Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(5) or Section 5.1(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the registration or removal of the Trustee. All indemnifications
and releases from liability granted in this Article 6 to the Trustee shall
extend to its directors, officers, employees and agents and to the Trustee and
to each Paying Agent and Registrar. Whether or not expressly provided for
herein, every provision of this Indenture relating to the conduct or affecting
the liability of the Trustee shall be subject to the provision of this Article
6.
Section 6.10 Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of any series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying
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the Trustee and the Company and may appoint a successor Trustee for such series
with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at least six months;
or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge
of the Trustee or 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 (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) if the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of one or more
series, the Company, by or pursuant to Board Resolution, shall promptly appoint
a successor Trustee 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 6.11. 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 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a
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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.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee, without
further act, deed or conveyance, shall become vested with all the rights, powers
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein such successor Trustee shall accept such
appointment and which (i) 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, (ii) 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 (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with
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respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
(e) 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 in the
manner provided for notices to the Holders of Securities in Section 1.6. 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 6.12 Eligibility; Disqualification. There shall at all times be
a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $50,000,000 (or, in the case of a Trustee which is a
subsidiary of a bank holding company, which Trustee shall have a combined
capital and surplus of at least $10,000,000 and whose ultimate parent bank
holding company shall have a combined capital and surplus of at least
$50,000,000). If such corporation (or ultimate parent bank holding company, as
the case may be) publishes reports of condition at least annually, pursuant to
law or the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation (or ultimate parent bank
holding company, as the case may be) shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.13 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the
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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 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, 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. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. 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 may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any state or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
federal or state authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. 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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
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----------------------------------------------
Trustee
By
-------------------------------------------
as Authenticating Agent
By
-------------------------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1 Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate or merge with or into, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of its assets
to, any Person unless:
(1) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or which acquires the Company's
assets, is a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of
Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or which acquires the Company's
assets, expressly assumes by supplemental indenture all the obligations
of the Company under the Securities and this Indenture; and
(3) immediately after giving effect to the transaction no
Default or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate and an Opinion of Counsel each stating that
the proposed transaction and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of the
transaction under this Indenture have been met.
Section 7.2 Successor Person Substituted for Company. Upon any
consolidation by the Company with or merger of the Company into any other Person
or any sale, conveyance, assignment, transfer, lease or other disposition of all
or substantially all of the assets of the Company to any Person in accordance
with Section 7.1, the successor Person formed by such consolidation or into
which the Company is merged or to which
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such sale, conveyance, assignment, transfer, lease or other disposition 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 8
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, 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 indentures supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only)
or to facilitate the issuance of Securities in global form; or
(5) to amend or supplement any provision contained herein or
in any supplemental indenture (which amendment or supplement may apply
to one or more series of Securities or to one or more Securities within
any series as specified in such supplemental indenture), provided that
such amendment or supplement does not apply to any Outstanding Security
issued prior to the date of such supplemental indenture and entitled to
the benefits of such provision; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States of principal,
premium, if any, or interest, if any, on Bearer Securities or coupons,
if any; or
(10) to cure any ambiguity or correct any mistake or to
correct or supplement any provision herein which may be inconsistent
with any other provision herein or to make any other provisions with
respect to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of any Holder of
Securities of any series; or
(11) to make any change to comply with the Trust Indenture Act
of 1939 or any amendment thereof, or any requirement of the Securities
and Exchange Commission in connection with the qualification of this
Indenture under the Trust Indenture Act of 1939 or any amendment
thereof.
Section 8.2 Supplemental Indentures With Consent of Holders. With the
written consent of the Holders of a majority of the aggregate principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee
may enter into an indenture or indentures supplemental hereto to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any other indenture supplemental hereto or to modify the rights of the Holders
of such Securities; provided, however, that without the consent of the Holder of
each Outstanding Security affected thereby, an amendment under this Section may
not:
(1) change the Stated Maturity of the principal of or premium,
if any, on or of any installment of principal of or premium, if any, or
interest, if any, on, or Additional Amounts, if any, with respect to,
any Security, or reduce the principal amount of, or any installment of
principal of, or premium, if any, or interest, if any, on, or any
Additional Amounts payable with respect to, any Security or the rate of
interest on any Security, or reduce the amount of premium, if any,
payable upon redemption of any Security or the repurchase by the
Company of any Security at the option of the Holder thereof, or change
the manner in which the
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amount of any principal thereof or premium, if any, or interest thereon
or Additional Amounts, if any, with respect thereto is determined, or
reduce the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency in which any Securities or any premium or
the interest thereon or Additional Amounts, if any, with respect
thereto, is payable, or change the index, securities or commodities
with reference to which or the formula by which the amount of principal
or any premium or the interest thereon is determined, 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 repurchase by the Company
at the option of the Holder, on or after the date for repurchase);
(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;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
or
(4) make any change in Section 5.7 or this 8.2 except to
increase any percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holders of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3 Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
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Section 8.4 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and 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 8.5 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
Section 8.6 Reference in Securities to Supplemental Indentures.
Securities, including any coupons, 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 including any coupons 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 including any coupons of such series.
ARTICLE 9
COVENANTS
Section 9.1 Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, and premium,
if any, and interest on, and Additional Amounts, if any, with respect to, the
Securities of that series in accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this Indenture. An installment of
principal, premium, if any, interest or Additional Amounts, if any, shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.
Section 9.2 Maintenance of Office or Agency. If Securities of a series
are issued as Registered Securities, the Company will maintain in each Place of
Payment for such series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for
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registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States where Securities of that series and related
coupons may be presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on any stock exchange located outside
the United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (ii) subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.1, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) 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 (including any coupons, if any) of any series for
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such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates the Borough of Manhattan, The City of New York, as the Place
of Payment for each series of Securities and initially appoints the Trustee, at
its offices which on the date of this Indenture are located at c/o The Chase
Manhattan Bank, Corporate Trust Securities Window, 55 Water Street, Room 234,
North Building, New York, New York 10041, as the Company's agency in the Borough
of Manhattan, The City of New York for the foregoing purposes and as Registrar
and Paying Agent. The Company may subsequently appoint a different office or
agency in the Borough of Manhattan, The City of New York and a different
Registrar and Paying Agent for the Securities of any series.
Section 9.3 Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, or premium, if any, or interest on, or Additional Amounts, if
any, with respect to, any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on or Additional Amounts, if any, with
respect to the Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities; 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
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Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal, premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security and coupon, if any,
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder,
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, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 9.4 Corporate Existence. Except as provided in Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best
interests of the Company and not prejudicial in any material respect to the
Holders of the Securities.
Section 9.5 Insurance. The Company covenants and agrees that it will
maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as are consistent with sound business practice for
corporations engaged in the same or similar business similarly situated. In lieu
of the foregoing or in combination therewith, in case of itself or of any one or
more of its Subsidiaries, the Company will maintain or cause to be maintained a
system or systems of self-insurance which will accord with the financially sound
and approved practices of companies owning or operating properties of a similar
character and maintaining such systems.
Section 9.6 Reports by the Company. The Company covenants:
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(a) to file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with the
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 provided for in this Indenture, as may
be required from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, 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
subsections (a) and (b) of this Section 9.6, as may be required by the rules and
regulations prescribed from time to time by the Commission.
Section 9.7 Annual Review Certificate; Notice of Defaults or Events of
Default.
(a) The Company covenants and agrees to deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, a certificate from
the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of this Section
9.7, such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the Trustee, within
a reasonable time after the Company becomes aware of the occurrence of a Default
or an Event of Default of the character specified in Section 5.1(4) hereof,
written notice of the occurrence of such Default or Event of Default.
Section 9.8 Limitation on Liens.
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(a) The Company will not, and will not permit any Subsidiary to, incur,
assume or guarantee any Debt secured by a Lien on any shares of capital stock
of, or other ownership interests in, any Restricted Subsidiary ("Secured Debt")
(whether such capital stock or ownership interests are owned or outstanding at
the date of this Indenture or thereafter acquired or issued, as the case may be)
if, immediately after giving effect thereto, the aggregate principal amount of
all Secured Debt (other than Excluded Debt) would exceed 15% of the Company's
Consolidated Net Tangible Assets, unless the Company provides, concurrently with
or prior to the incurrence, assumption or guarantee of such Secured Debt, that
the Securities shall be secured equally and ratably with (or, at the option of
the Company, prior to) such Secured Debt.
(b) The provisions set forth in Section 9.8(a) shall not apply to Debt
secured by the following Liens ("Excluded Debt"):
(i) (A) Liens existing as of the date of this Indenture or (B)
Liens relating to contracts entered into by the Company or any
Subsidiary prior to the date of this Indenture;
(ii) Liens securing all or any part of the indebtedness
incurred pursuant to that certain Credit Agreement, dated as of
_______________, by and among the Company, as Borrower, Bank of
America, N.A., as Administrative Agent, Chase Securities Inc., as
Syndication Agent, Morgan Stanley Senior Funding, Inc., as
Documentation Agent, Paribas, as Co-Documentation, and various
financial institutions and other persons from time to time parties
thereto, as Lenders;
(iii) Liens on any shares of capital stock or other ownership
interests existing at the time of acquisition thereof (whether such
acquisition is direct or by merger, acquisition of stock or assets or
otherwise) by the Company or any of its Subsidiaries, provided such
Liens were not created in contemplation of or in connection with such
acquisition;
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(iv) Liens securing Debt owing by any Subsidiary to the
Company or to any other Subsidiary;
(v) Liens in favor of governmental bodies to secure advance,
progress or other payments pursuant to any contract or statute;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(vii) Liens for taxes not yet due or which are being contested
by the Company in good faith; and
(viii) Liens for the sole purpose of extending, renewing or
replacing in whole or in part the Debt secured thereby referred to in
the foregoing clauses (i) to (vii), inclusive, or in this clause
(viii); provided, however, that the Debt excluded pursuant to this
clause (viii) shall be excluded only in an amount not to exceed the
principal amount of Debt so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or replacement
shall be limited to all or part of the shares of capital stock or other
ownership interests, as the case may be, subject to the Lien so
extended, renewed or replaced.
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Section 9.9 Books of Record and Account; Compliance with Law.
(a) The Company will keep, and will cause each Subsidiary to keep,
proper books of record and account, either on a consolidated or individual
basis. The Company shall cause its books of record and account to be examined by
one or more firms of independent public accountants not less frequently than
annually. The Company shall prepare its financial statements in accordance with
GAAP.
(b) The Company shall, and shall cause each of its Subsidiaries to,
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially adversely
affect the business, prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole.
Section 9.10 Taxes. The Company shall, and shall cause each of its
Subsidiaries to, pay or discharge or cause to be paid or discharged prior to
delinquency all taxes, assessments and governmental levies the non-payment of
which would materially adversely affect the business, prospects, earnings,
properties, assets or condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole except those taxes, assessments and governmental
levies whose amount, applicability or validity is being contested in good faith
and by appropriate proceedings.
Section 9.11 Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts pursuant to Section 3.1(b)(18), the
Company agrees to pay to the Holder of each 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 appertaining thereto,
such mention shall be deemed to include mention of the payment of any Additional
Amounts provided by the terms of such series established hereby or
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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 any 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
similar governmental charge described in the terms of 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 on or prior to the date such
payment is due 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 of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
ARTICLE 10
REDEMPTION
Section 10.1 Applicability of Article. Securities (including coupons,
if any) of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series) in accordance with
this Article.
Section 10.2 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities, including coupons, if any, shall be evidenced
by or pursuant to a Board Resolution. In the case of any redemption at the
election of the
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Company of less than all the Securities or coupons, if any, of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 10.3 Selection of Securities to Be Redeemed. Unless otherwise
specified as contemplated by Section 3.1, if less than all the Securities
(including coupons, if any) of a series with the same terms are to be redeemed,
the Trustee, not more than 45 days prior to the Redemption Date, shall select
the Securities of the series to be redeemed in such manner as the Trustee shall
deem fair and appropriate. The Trustee shall make the selection from Securities
of the series that are Outstanding and that have not previously been called for
redemption and may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for Securities
of that series. The Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons, if
any) shall relate, in the case of any Securities (including coupons, if any)
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4 Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
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(3) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) 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 will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment 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;
(6) that Securities of the series called for redemption and
all unmatured coupons, if any, appertaining thereto must be surrendered
to the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price,
together with (except as otherwise set forth in Section 10.6 or as may
otherwise be specified with respect to such Securities pursuant to
Section 3.1) accrued and unpaid interest, if any, on and Additional
Amounts, if any, with respect to the Securities (or portions thereof)
to be redeemed, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) 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 Redemption Date
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; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed 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.
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Section 10.5 Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, which it may not do in the case
of a sinking fund payment under Article 11, segregate and hold in trust as
provided in Section 9.3) an amount of money in the currency 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 on the
Redemption Date the Redemption Price of, and (unless the Redemption Date shall
be an Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6 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 (together with (except as otherwise set forth in this Section
10.6 or as may otherwise be specified with respect to such Securities pursuant
to Section 3.1) accrued interest, if any, thereon and Additional Amounts, if
any, with respect thereto to the Redemption Date), 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 any such interest appertaining to any Bearer Security so to be redeemed,
except to the extent provided below, shall be void. Except as provided in the
next succeeding paragraph, upon surrender of any such Security, including
coupons, if any, for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest and Additional Amounts, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 9.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
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 relevant Record Dates 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
Bearer Security may be
74
<PAGE> 81
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 Bearer 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
interest represented by coupons shall be payable only at an office or agency
located outside of the United States (except as otherwise provided pursuant to
Section 9.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by or
prescribed therefor in the Security.
Section 10.7 Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part at any Place of Payment therefor (with, if the Company
or the Trustee so required, 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), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or Securities of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.
ARTICLE 11
SINKING FUNDS
Section 11.1 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 specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.2. 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.
75
<PAGE> 82
Section 11.2 Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.3 Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 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 10.3 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 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
instrument.
76
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By:
-------------------------------
Name:
Title:
[Seal]
Attest:
----------------------------
Secretary
[NAME OF TRUSTEE]
By:
-------------------------------
Name:
Title:
[Seal]
Attest:
----------------------------
Title:
77
<PAGE> 1
EXHIBIT 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
December 20, 1999
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
Re: Registration Statement on Form S-3 (File No. 333-65837)
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Fidelity National Financial, Inc., a
Delaware corporation ("Fidelity"), in connection with the preparation of the
Registration Statement on Form S-3 (File No. 333-65837) filed by Fidelity with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act") (as amended, the "Registration
Statement"). The Registration Statement relates to the issuance and sale from
time to time, pursuant to Rule 415 of the General Rules and Regulations of the
Commission promulgated under the Securities Act, of the following securities of
Fidelity with an aggregate initial public offering price of up to $400,000,000:
(i) debt securities, in one or more series (the "Debt Securities"), which may be
issued under an Indenture (the "Indenture") entered into or proposed to be
entered into between Fidelity and a trustee (the "Trustee") that has been or
will be appointed prior to the issuance of Debt Securities; (ii) shares of
Fidelity preferred stock, par value $.0001 per share (the "Preferred Stock"), in
one or more series, which may also be issued in the form of depositary shares
(the "Depositary Shares") evidenced by depositary receipts (the "Receipts"); and
(iii) shares of Fidelity common stock, par value $.0001 per share (the "Common
Stock" and, collectively with the Debt Securities, the Preferred Stock, the
Depositary Shares and the Common Stock, the "Offered Securities").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
<PAGE> 2
Fidelity National Financial, Inc.
December 20, 1999
Page Two
In connection with the preparation of this opinion, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate and other records and documents as we considered appropriate
including, without limitation:
(i) the Registration Statement;
(ii) the Indenture or form thereof filed as an exhibit to the
Registration Statement;
(iii) the form of deposit agreement (the "Deposit Agreement") filed as
an exhibit to the Registration Statement that may be entered into among
Fidelity, a depositary to be appointed by Fidelity (the "Depositary") and the
holders from time to time of Receipts issued thereunder in connection with any
offering of Depositary Shares, including the form of Receipt evidencing the
Depositary Shares included as Annex A to the Deposit Agreement;
(iv) a specimen certificate representing the Common Stock;
(v) the Certificate of Incorporation of Fidelity, as presently in
effect;
(vi) the Bylaws of Fidelity, as presently in effect; and
(vii) resolutions of the Board of Directors of Fidelity (the "Board
Resolutions") relating to the preparation and filing of the Registration
Statement.
In addition, we have examined such other documents and considered such
questions of law as we have deemed necessary or appropriate. As to questions of
fact material to our opinions, we have relied upon certificates of public
officials, certificates of officers or other representatives of Fidelity and
others, and such other certificates or representations as we considered
appropriate.
We have assumed the authenticity of all documents submitted to us as
originals, the conformity with originals of all documents submitted to us as
copies and the genuineness of all signatures. We have also assumed that, with
respect to all parties to agreements or instruments relevant hereto other than
Fidelity, such parties had or will have the requisite power and authority to
execute and deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action,
corporate or other, and executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to any facts material to the opinions expressed herein which
were not independently established or verified, we have relied upon oral or
written statements and representations of officers and other representatives of
Fidelity and others.
Based upon the foregoing, and subject to the assumptions, exceptions,
qualifications and limitations set forth herein, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Board of Directors of Fidelity has taken all
necessary corporate action to authorize the offer,
<PAGE> 3
Fidelity National Financial, Inc.
December 20, 1999
Page Three
sale and issuance of, and to fix and determine the terms of, the Offered Debt
Securities; (ii) the terms of the Offered Debt Securities and of their issuance
and sale have been duly established in conformity with the Indenture; (iii) the
Indenture has been duly executed and delivered; and (iv) the Offered Debt
Securities have been duly executed and authenticated in accordance with the
terms of the Indenture and duly delivered to the purchasers thereof upon payment
of the agreed-upon consideration therefor, the issuance and sale of the Offered
Debt Securities will have been duly authorized by all necessary corporate action
on the part of Fidelity, and the Offered Debt Securities will constitute valid
and binding obligations of Fidelity enforceable against Fidelity in accordance
with their terms, except as the enforceability thereof may be subject to or
limited by (1) bankruptcy, insolvency, reorganization, arrangement, moratorium
or similar laws relating to creditors' rights generally, and (2) general
equitable principles, regardless of whether the issue is enforceability is
considered in a proceeding in equity or at law.
2. With respect to the shares of any series of Preferred Stock (the
"Offered Preferred Stock"), when (i) the Board of Directors has taken all
necessary corporate action to authorize the offer, sale and issuance of, and to
fix and determine the terms of, the Offered Preferred Stock, including the
adoption of a Certificate of Designations for such Preferred Stock in the form
required by applicable law; (ii) such Certificate of Designations has been duly
filed with the Secretary of State of the State of Delaware; (iii) certificates
representing the shares of the Offered Preferred Stock have been manually signed
by an authorized officer of Fidelity or of the transfer agent and registrar for
the Preferred Stock and registered by Fidelity or such transfer agent and
registrar, and delivered to the purchasers thereof; and (iv) Fidelity receives
consideration per share of the Offered Preferred Stock (A) in such amount (not
less than the par value per share) as may be determined by the Board of
Directors in the form of cash, services rendered, personal property, real
property, leases of real property, or a combination thereof or (B) in an amount
not less than the amount of consideration determined to be capital, in any of
the above-stated forms, and a binding obligation of the purchaser to pay the
balance of such purchase price, the issuance and sale of the shares of Offered
Preferred Stock will have been duly authorized by all necessary corporate action
on the part of Fidelity, and such shares will be validly issued, fully paid and
nonassessable.
3. With respect to Depositary Shares representing fractional interests
in any series of Preferred Stock, when (i) the Board of Directors has taken all
necessary corporate action to authorize the offer, sale and issuance of, and to
fix and determine the terms of, the Depositary Shares and the related series of
Preferred Stock, including the adoption of a Certificate of Designations for
such related series of Preferred Stock in the form required by applicable law;
(ii) such Certificate of Designations has been duly filed with the Secretary of
State of the State of Delaware; (iii) the terms of the Depositary Shares and of
their issuance and sale have been duly established in conformity with the
Deposit Agreement; (iv) the Deposit Agreement has been duly executed and
delivered; (v) the related series of Preferred Stock has been duly authorized
and validly issued in accordance with the laws of the State of Delaware and
delivered to the Depositary for deposit in accordance with the Deposit
Agreement; and (vi) the Receipts evidencing the Depositary Shares have been duly
issued against deposit of the related series of Preferred Stock with the
Depositary in accordance with
<PAGE> 4
Fidelity National Financial, Inc.
December 20, 1999
Page Four
the Deposit Agreement, the issuance and sale of the Depositary Shares will be
validly issued and the Receipts will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement.
4. With respect to the shares of Common Stock (the "Offered Common
Stock"), when (i) the Board of Directors has taken all necessary corporate
action to authorize the offer, sale and issuance of the Offered Common Stock;
(ii) certificates representing the shares of the Offered Common Stock in the
form of the specimen certificates examined by us have been manually signed by an
authorized officer of the transfer agent and registrar for the Common Stock and
registered by such transfer agent and registrar, and delivered to the purchasers
thereof; and (iii) Fidelity receives consideration per share of the Offered
Common Stock (A) in such an amount (not less than the par value per share) as
may be determined by the Board of Directors in the form of cash, services
rendered, personal property, real property, leases of real property, or a
combination thereof or (B) in an amount not less than the amount of
consideration determined to be capital, in any of the above-stated forms, and a
binding obligation of the purchaser to pay the balance of such purchase price,
the issuance and sale of the shares of Offered Common Stock (including any
Offered Common Stock duly issued upon exchange or conversion of any Debt
Securities or shares of Preferred Stock that are exchangeable or convertible
into Common Stock) will have been duly authorized by all necessary corporate
action on the part of Fidelity, and such shares will be validly issued, fully
paid and nonassessable.
The foregoing opinions are subject to the following:
A. Notwithstanding the foregoing, the opinions expressed above with
respect to the Offered Debt Securities shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission to Offered Debt
Securities the payment or interest on which will be determined by reference to
one or more currency exchange rates, commodity prices, equity indices or other
factors.
B. With respect to any Indenture, Deposit Agreement or other agreement
or instrument evidencing or relating to any Offered Securities, we have not
examined the question of what law would govern the interpretation or enforcement
thereof, and our opinions are based on the assumption that the internal laws of
the State of California would govern such agreement or instrument and the
transactions contemplated thereby. We express no opinion regarding the choice of
law provisions of any such agreement or instrument.
We are members of the Bar of the State of California and, accordingly,
do not purport to be experts on, or to be qualified to express any opinion
herein concerning, nor do we express any opinion concerning, any law other than
the laws of the State of California and the General Corporation Law of the State
of Delaware.
<PAGE> 5
Fidelity National Financial, Inc.
December 20, 1999
Page Five
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Opinions" in the Registration Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 12.1
FIDELITY NATIONAL FINANCIAL, INC.
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Nine months ended
Year ended December 31, September 30,
------------------------------------------------ -----------------
1994 1995 1996 1997 1997 1998 1999
------- ------- ------- ------- -------- ------- -------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings $15,577 $ 7,953 $29,241 $47,308 $105,692 $76,920 $62,115
Fixed charges 13,779 15,053 16,885 18,208 21,456 12,751 10,599
------- ------- ------- ------- -------- ------- -------
$29,356 $23,006 $46,126 $65,516 $127,148 $89,671 $72,714
======= ======= ======= ======= ======== ======= =======
Fixed charges:
Interest expense $ 9,078 $10,137 $11,590 $12,269 $ 17,024 $ 9,414 $10,047
Amortization of original issue discount
and debt issuance costs 4,701 4,916 5,295 5,939 4,432 3,337 552
------- ------- ------- ------- -------- ------- -------
$13,779 $15,053 $16,885 $18,208 $ 21,456 $12,751 $10,599
======= ======= ======= ======= ======== ======= =======
Ratio of Earnings to Fixed charges 2.1 1.5 2.7 3.6 5.9 7.0 6.9
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fidelity National Financial, Inc.:
We consent to the use of our reports incorporated herein by reference and to the
reference of our firm under the heading "Experts" in the registration statement.
/s/ KPMG LLP
Los Angeles, California
December 20, 1999
