SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 1, 1998
AMBAC FINANCIAL GROUP, INC.
Delaware 1-10777 13-3621676
(State of incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
One State Street Plaza
New York, New York 10004
(Address of principal executive offices) (Zip Code)
(212) 668-0348
(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS
Ambac Financial Group, Inc. ("Ambac" or the "Registrant") is filing
herewith the following in connection with the offering of $200,000,000
principal amount of its 7.08% Debentures due March 31, 2098 (the
"Debentures") pursuant to the registration statement of the Registrant on
Form S-3 (No. 333-43695) filed with the Securities and Exchange Commission
under the Securities Act of 1933.
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
5.1 Terms Agreement dated April 1, 1998 with respect to the
Debentures.
5.2 Indenture, dated as of April, 1 1998, between Ambac and
First Union National Bank.
5.3 Form of Debenture.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
AMBAC FINANCIAL GROUP, INC.
By: _______________________
Date: April 3, 1998
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
- -------- ----------------------
5.1 Terms Agreement dated April 1, 1998 with respect to the
Debentures.
5.2 Indenture, dated as of April, 1 1998, between Ambac and
First Union National Bank.
5.3 Form of Debenture.
Exhibit No. 5.1
AMBAC FINANCIAL GROUP, INC.
(a Delaware corporation)
Senior Debt Securities
TERMS AGREEMENT
April 1, 1998
To: Ambac Financial Group, Inc.
One State Street Plaza
New York, New York 10004
Ladies and Gentlemen:
We understand that Ambac Financial Group, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell $200,000,000
aggregate principal amount of its Senior Debt Securities (such securities
being hereinafter referred to as the "Underwritten Securities"). Subject to
the terms and conditions set forth and incorporated by reference herein,
the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the principal amount of Underwritten Securities
set forth opposite their names below at the purchase price set forth below.
Principal Amount of
Underwriter Underwritten Securities
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................. $33,600,000
Goldman, Sachs & Co............................. 33,600,000
PaineWebber Incorporated........................ 33,600,000
Prudential Securities Incorporated.............. 33,600,000
Smith Barney Inc................................ 33,600,000
BT Alex. Brown Incorporated..................... 2,000,000
Robert W. Baird & Co. Incorporated.............. 2,000,000
Bear, Stearns & Co. Inc......................... 2,000,000
CIBC Oppenheimer Corp........................... 2,000,000
Cowen & Company................................. 2,000,000
Dain Rauscher Incorporated...................... 2,000,000
Donaldson, Lufkin & Jenrette
Securities Corporation........................ 2,000,000
A.G. Edwards & Sons, Inc........................ 2,000,000
EVEREN Securities, Inc.......................... 2,000,000
Legg Mason Wood Walker, Incorporated............ 2,000,000
Piper Jaffray Inc............................... 2,000,000
Raymond James & Associates, Inc................. 2,000,000
The Robinson-Humphrey Company, LLC.............. 2,000,000
Tucker Anthony Incorporated..................... 2,000,000
US Clearing Corp................................ 2,000,000
Wheat First Securities, Inc..................... 2,000,000
------------
Total........................................... $200,000,000
============
The Underwritten Securities shall have the following terms:
Title: 7.08% Debentures Due March 31, 2098.
Rank: Senior Debt.
Ratings: Moody's Investor's Service, Inc. - Aa2 and
Standard & Poor's Ratings Group - AA.
Aggregate principal amount: $200,000,000.
Denominations: $25.00 and integral multiples thereof.
Currency of payment: United States Dollars.
Interest rate or formula: 7.08% per annum.
Interest payment dates: Each March 31, June 30, September 30 and
December 31.
Regular record dates: Each March 15, June 15,
September 15 and December 15.
Stated maturity date: March 31, 2098.
Redemption provisions: Except as set forth below, the Debentures are
not redeemable prior to March 31, 2003. On or
after March 31, 2003, the Company, at its
option, may redeem the Debentures, in whole
at any time or in part from time to time, on
not less than 30 days but not more than 60
days notice, at a redemption price equal to
100% of the principal amount, plus accrued
interest to the date of redemption. In
addition, under certain circumstances
involving a Tax Event, the Company will have
the right, within 90 days following the
occurrence of such Tax Event, to redeem the
Debentures in whole (but not in part) at 100%
of their principal amount, plus accrued
interest to the date of redemption, as more
fully described in the Prospectus Supplement.
Right to Shorten Maturity: Upon the occurrence of a Tax Event (as
defined in the Prospectus Supplement), the
Company will have the right to shorten the
maturity of the Debentures to the minimum
extent required such that, after shortening
the maturity, the Company will be able to
deduct interest paid on the Debentures for
United States federal income tax purposes, as
more fully described in the Prospectus
Supplement.
Sinking fund requirements: None.
Conversion provisions: None.
Listing requirements: The Company will make application to list the
Debentures for trading on the New York Stock
Exchange.
Black-out provisions: Between the date hereof and April 15, 1998,
the Company will not, without the prior
written consent of the Representatives,
directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the
sale of, or otherwise dispose of, any debt
securities of the Company.
Fixed or Variable Price
Offering: Fixed Price Offering Initial public offering
price: 100% of the principal amount, plus
accrued interest, if any, from April 6, 1998.
Purchase price: 96.85% of the principal amount.
Form: Global certificates representing the
Underwritten Securities registered in the
name of Cede & Co., as nominee for The
Depository Trust Company.
Other terms and conditions: The Underwritten Securities will be issued
under an indenture, dated as of April 1, 1998
between the Company and First Union National
Bank, as Trustee (the "1998 Indenture"). All
references to the "Indenture" in the
Underwriting Agreement shall be deemed to
refer to the 1998 Indenture.
Closing date and location: April 6, 1998; Brown &
Wood LLP, One World Trade Center, New York,
New York 10048.
Co-Managers/Representatives: Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Goldman, Sachs & Co.,
PaineWebber Incorporated, Prudential
Securities Incorporated and Smith Barney Inc.
Notices: Notices to the Underwriters shall be directed
to the Representatives, c/o Merrill Lynch,
Pierce, Fenner & Smith Incorporated, World
Financial Center, North Tower, New York, New
York 10281-1201, Attention: Tony Ursano.
All of the provisions contained in the Company's Underwriting
Agreement, dated April 1, 1998 (the "Underwriting Agreement"), are hereby
incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions
had been set forth in full herein. Unless otherwise specified herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed wholly within such State.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to
the undersigned a counterpart hereof, whereupon this instrument, along with
all counterparts and together with the Underwriting Agreement, shall be a
binding agreement among the Underwriters named herein and the Company in
accordance with its terms and the terms of the Underwriting Agreement.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By _______________________________________
Authorized Signatory
Acting on behalf of itself and as
Representative of the other named
Underwriters.
Accepted:
AMBAC FINANCIAL GROUP, INC.
By _________________________________
Name: Richard B. Gross
Title: Senior Vice President,
General Counsel and Secretary
Exhibit No. 5.2
AMBAC FINANCIAL GROUP, INC.
TO
FIRST UNION NATIONAL BANK
Trustee
------------
INDENTURE
Dated as of April 1, 1998
------------
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED, AND
INDENTURE, DATED AS OF APRIL 1, 1998.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
Section 310(a)(1)............................ 607
(a)(2)............................ 607
(b) ............................ 608
Section 312(a) .. ......................... 703
Section 312(c) ............................ 701
Section 313(a) ............................ 702
Section 314(a) ............................ 703
(c)(1)............................ 102
(c)(2)............................ 102
(e) ............................ 102
Section 315(b) ............................ 601
Section 316(a) ............................ 101
("Outstanding")
(a)(l)(A)............................ 502
512
(a)(l)(B)............................ 513
(b) ............................ 508
Section 317(a)(1)............................ 503
(a)(2)............................ 504
Section 318(a) ............................ 111
- ------------------
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THIS INDENTURE.
TABLE OF CONTENTS(1)
PAGE
----
RECITALS OF THE COMPANY.............................................1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION..............................................1
SECTION 101. DEFINITIONS...........................................1
Act.................................................................2
Affiliate...........................................................2
Authenticating Agent................................................2
Board of Directors..................................................2
Board Resolution....................................................2
Business Day........................................................2
Commission..........................................................2
Company ............................................................2
Company Request" or "Company Order..................................3
Corporate Trust Office..............................................3
Corporation.........................................................3
Currency............................................................3
Defaulted Interest..................................................3
Depositary..........................................................3
Dollar" or "$.......................................................3
ECU.................................................................3
Exchange Rate Agent.................................................3
Event of Default....................................................3
Global Security.....................................................3
Holder..............................................................4
Indenture...........................................................4
Interest Payment Date...............................................4
Maturity............................................................4
Mortgage............................................................4
Officers' Certificates..............................................4
Opinion of Counsel..................................................4
Original Issue Discount Security....................................4
Outstanding.........................................................4
Paying Agent........................................................5
Person..............................................................5
Place of Payment....................................................5
Predecessor Security................................................5
Redemption Date.....................................................6
Redemption Price....................................................6
Regular Record Date.................................................6
Responsible Officer.................................................6
Restricted Subsidiary...............................................6
Securities..........................................................6
Security Register" and "Security Registrar..........................6
Special Record Date.................................................6
Stated Maturity.....................................................6
Subsidiary..........................................................7
Trustee ............................................................7
Trust Indenture Act.................................................7
U.S. Government Obligations.........................................7
Vice President......................................................7
Voting Stock........................................................7
SECTION 102. Compliance Certificates and Opinions..................7
SECTION 103. Form of Documents Delivered to Trustee................8
SECTION 104. Acts of Holders.......................................9
SECTION 105. Notices, Etc., to Trustee and Company.................9
SECTION 106. Notice to Holders; Waiver............................10
SECTION 107. Effect of Headings and Table of Contents.............10
SECTION 108. Successors and Assigns...............................10
SECTION 109. Separability Clause..................................11
SECTION 110. Benefits of Indenture................................11
SECTION 111. Governing Law........................................11
SECTION 112. Legal Holidays.......................................11
ARTICLE TWO
SECURITY FORMS.....................................................11
SECTION 201. Forms Generally......................................11
SECTION 202. Additional Provisions in Global Securities...........12
SECTION 203. Form of Trustee's Certificate of Authentication......13
ARTICLE THREE
THE SECURITIES.....................................................13
SECTION 301. Amount Unlimited; Issuable in Series.................13
SECTION 302. Denominations........................................15
SECTION 303. Execution, Authentication, Delivery and Dating.......15
SECTION 304. Temporary Securities.................................17
SECTION 305. Registration, Registration of Transfer and
Exchange...........................................18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.....19
SECTION 307. Payment of Interest; Interest Rights Preserved.......20
SECTION 308. Persons Deemed Owners................................22
SECTION 309. Cancellation.........................................22
SECTION 310. Computation of Interest..............................23
ARTICLE FOUR
SATISFACTION AND DISCHARGE.........................................23
SECTION 401. Satisfaction and Discharge of Indenture..............23
SECTION 402. Application of Trust Money...........................24
ARTICLE FIVE
REMEDIES...........................................................24
SECTION 501. Events of Default....................................24
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.........................................26
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee............................28
SECTION 504. Trustee May File Proofs of Claim.....................28
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.....................................29
SECTION 506. Application of Money Collected.......................30
SECTION 507. Limitation on Suits..................................30
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest...................31
SECTION 509. Restoration of Rights and Remedies...................31
SECTION 510. Rights and Remedies Cumulative.......................32
SECTION 511. Delay or Omission Not Waiver.........................32
SECTION 512. Control by Holders...................................32
SECTION 513. Waiver of Past Defaults..............................33
SECTION 514. Waiver of Stay or Extension Laws.....................33
ARTICLE SIX
THE TRUSTEE........................................................34
SECTION 601. Notice of Defaults...................................34
SECTION 602. Certain Rights of Trustee............................34
SECTION 603. Not Responsible for Recitals or Issuance
of Securities.....................................35
SECTION 604. May Hold Securities..................................35
SECTION 605. Money Held in Trust..................................36
SECTION 606. Compensation and Reimbursement.......................36
SECTION 607. Corporate Trustee Required; Eligibility..............36
SECTION 608. Resignation and Removal; Appointment of Successor....37
SECTION 609. Acceptance of Appointment by Successor...............38
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.......................................40
SECTION 611. Appointment of Authenticating Agent..................40
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..................42
SECTION 701. Disclosure of Names and Addresses of Holders.........42
SECTION 702. Reports by Trustee...................................42
SECTION 703. Reports by Company and Holders' Lists................42
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...............44
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.............................................44
SECTION 802. Successor Corporation Substituted....................44
ARTICLE NINE
SUPPLEMENTAL INDENTURES............................................45
SECTION 901. Supplemental Indentures Without Consent of Holders...45
SECTION 902. Supplemental Indentures with Consent of Holders......46
SECTION 903. Execution of Supplemental Indentures.................47
SECTION 904. Effect of Supplemental Indentures....................47
SECTION 905. Conformity with Trust Indenture Act..................48
SECTION 906. Reference in Securities to Supplemental Indentures...48
ARTICLE TEN
COVENANTS..........................................................48
SECTION 1001. Payment of Principal, Premium and Interest...........48
SECTION 1002. Maintenance of Office or Agency......................48
SECTION 1003. Money for Securities Payments to Be Held in Trust....49
SECTION 1004. Corporate Existence..................................51
SECTION 1005. Maintenance of Properties............................51
SECTION 1006. Payment of Taxes and Other Claims....................51
SECTION 1007. Limitations on Liens.................................51
SECTION 1008. Limitations on Disposition of Stock of Restricted
Subsidiaries.......................................52
SECTION 1009. Statement as to Compliance...........................52
SECTION 1010. Waiver of Certain Covenants..........................52
ARTICLE ELEVEN
REDEMPTION OF SECURITIES...........................................53
SECTION 1101. Applicability of Article.............................53
SECTION 1102. Election to Redeem; Notice to Trustee................53
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....53
SECTION 1104. Notice of Redemption.................................54
SECTION 1105. Deposit of Redemption Price..........................54
SECTION 1106. Securities Payable on Redemption Date................55
SECTION 1107. Securities Redeemed in Part..........................55
ARTICLE TWELVE
SINKING FUNDS......................................................56
SECTION 1201. Applicability of Article.............................56
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities........................................56
SECTION 1203. Redemption of Securities for Sinking Fund............56
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS.....................................58
SECTION 1301. Applicability of Article.............................58
SECTION 1302. Repayment of Securities..............................58
SECTION 1303. Exercise of Option...................................58
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable...................................59
SECTION 1305. Securities Repaid in Part............................59
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE.................................60
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or..............................60
SECTION 1402. Defeasance and Discharge.............................60
SECTION 1403. Covenant Defeasance..................................60
SECTION 1404. Conditions to Defeasance or Covenant Defeasance......61
SECTION 1405. Application of Trust Money...........................63
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1 This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
INDENTURE, dated as of April 1, 1998, between Ambac Financial Group,
Inc., a corporation duly organized and existing under the laws of the State
of Delaware (the "Company"), having its principal office at One State Street
Plaza, New York, New York 10004, and First Union National Bank, a national
banking association incorporated and existing under the laws of the United
States of America, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to
be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, the Company agrees as follows with the Trustee for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Section have the meanings
assigned to them in this Section 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 United States generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles are generally accepted
at the date of such computation; and
(4) the words "herein," "hereof," and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", except as otherwise specified as contemplated by
Section 301, when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are generally authorized or
obligated by law 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 instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board,
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee in the
City of Newark, New Jersey at which at any particular time its corporate
trust business shall be administered.
"Corporation" includes corporations, associations, companies
and business trusts.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the ECU,
issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"Defaulted Interest" has the meaning specified in Section
307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301, and if at any time there is more than one such Person,
'Depositary' as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be
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 European Communities.
"Exchange Rate Agent" means a New York Clearinghouse Bank retained
for the purpose of quoting the exchange rate on any day between Dollars and
any Currency, or between any two Currencies.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security issued to evidence all or a part
of any series of Securities which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and
pursuant to a Company Order, which shall be registered in the name of the
Depositary or its nominee.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest of such Security.
"Maturity," when used with respect to any security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Mortgage" means any mortgage, pledge, lien, security
interest or other encumbrance.
"Officers' Certificates" means a certificate signed by the Chairman
of the Board, President or a Vice President, and by the Treasurer, an
Assistant Treasurer, Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for the payment or redemption of which
money or U.S. Government Obligations 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 as contemplated by Article Four or Article
Fourteen; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, and (b)
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified
as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performance
by any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge and familiarity with the particular
subject.
"Restricted Subsidiary" means AMBAC Assurance Corporation and any
successor to all or substantially all of its business, provided that such
successor is a Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each person who is then a
Trustee hereunder, and if at any time there is more than one such person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is
pledged, or obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States and the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such U.S.
Government Obligations or a specific payment of principal of or interest on
any such U.S. Government Obligations held by such custodian for the account
of the holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligations or
the specific payment of principal of or interest on the U.S. Government
Obligations evidenced by such depository receipt.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
"Voting Stock" means, with respect to any Subsidiary, stock of any
class or classes (or equivalent interest), if the holders of the stock of
such class or classes (or equivalent interests) are ordinarily, in the
absence of contingencies, entitled to vote for the election of the
directors (or persons performing similar functions) of such corporation,
even though the right so to vote has been suspended by the happening of
such a contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant
to Section 1010) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons 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 opinions or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) 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 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) At any time, the ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York. This
Indenture is subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment or in New York City, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially 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, as evidenced by their execution of the Securities. If the form
of Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action 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 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. ADDITIONAL PROVISIONS IN GLOBAL SECURITIES.
Any Global 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 in the Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect
to a Security in global form shall be in writing but need not comply with
Section 314(c) of the Trust Indenture Act.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent
of the Company and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent Global Security
the registered Holder of such permanent Global Security.
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906, 1107 or 1305);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if
any) and interest on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company, if
the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, the
Currency in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and integral
multiples thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(10) if other than Dollars, the Currency in which payment of
the principal of (and premium, if any) or interest, if any, on the
Securities of the series shall be payable or in which the Securities
of the series shall be denominated;
(11) whether the amount of payments of principal of (and
premium, if any) or interest on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), and
the manner in which such amounts shall be determined;
(12) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may
be specified;
(13) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(14) the application, if any, of Section 1402 or 1403 to the
Securities of any series;
(15) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities; the
terms and conditions, if any, upon which such Global Securities or
Securities may be exchanged in whole or in part for other definitive
Securities; and the Depositary for such Global Security or Securities,
which Depositary must be a clearing agency registered under the
Securities Exchange Act of 1934;
(16) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the
Securities of such series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any such Indenture supplemental hereto.
If any of the terms of the series are estab1ished by action taken
pursuant to a Board Resolution, copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions, the Securities of such
series, other than Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and
the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such series of Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
If all of the Securities of a series are not to be originally
issued at the same time, then the documents required to be delivered
pursuant to this Section 303 must be delivered only once, prior to the
authentication and delivery of the first Security of such series; provided,
however, that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate
delivered pursuant to Section 301 shall be true and correct as if made on
such date and that all the conditions precedent, if any, provided for in
this Indenture or the terms of the Securities of such series relating to
the authentication and delivery of Securities of such series have been
complied with.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, 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 Global
Securities 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 Global Security or Securities, (ii)
shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered
by the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) shall bear a legend substantially to the following
effect: "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 Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary" or to such other
effect as the Depositary and the Trustee may agree.
Each Depositary designated pursuant to Section 301 must, at the
time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation. The Trustee shall
have no responsibility to determine if the Depositary is so registered.
Each Depositary may enter into an agreement with the Trustee and the
Company governing their respective duties and rights with regard to Global
Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such
Securities.
Except in the case of temporary Securities in global form, 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
the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept, at an office or agency of the
Company maintained pursuant to Section 1002, a register (herein sometimes
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. Such office
or agency shall be the "Security Registrar" for the purpose of registering
Securities and transfers as herein provided. The Corporate Trust Office of
the Trustee is hereby initially appointed Security Registrar.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferees, one or more new Securities of the
same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series with the same terms, of
any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable
pursuant to this Section 305 for Securities registered in the names of
Persons other than the Depositary with respect to such Security or its
nominee only as provided in this paragraph. A Global Security shall be so
exchangeable pursuant to this Section 305 if (i) the Depositary with
respect to such Global Security notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, in either such case, a
successor Depositary is not appointed by the Company within 90 days, (ii)
the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable or (iii) there shall have occurred
and be continuing an Event of Default, or an event which, with the giving
of notice or lapse of time, or both, would constitute an Event of Default,
with respect to the Securities. Upon the exchange of a Global Security for
Securities in certificated form, such Global Security shall be cancelled by
the Trustee. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such
names as the Depositary with respect to such Global Security shall direct.
Notwithstanding any other provision of this Section 305, unless and
until it is exchanged in whole or in part for Securities in certificated
form, a Global Security may not be transferred except as a whole by the
Depositary with respect to such Global Security to a nominee of such
Depositary, or by a nominee of such Depositary to such Depositary or to
another nominee of such Depositary.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and
of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In any case such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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) incurred in
connection therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided, however, that each installment of
interest on any Security may at the Company's option be paid by mailing a
check for such interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 308, to the address of such Person as
it appears on the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of each series are
payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in the Currency in which the Securities
of each series are payable in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee, or
any agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by a Depositary or
impair, as between a Depositary and such holders of beneficial interests,
the operation of customary practices governing the exercise of the rights
of the Depositary as Holder of any Security.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall
be computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities of such series
herein expressly provided for), and the Trustee, at the expense of the
Company and upon Company Request, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such
series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has, or U.S. Government Obligations
have, theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company, in the
case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the
purpose an amount, in the Currency in which the Securities of
such series are payable, or U.S. Government Obligations,
maturing as to principal and interest at such times as will
assure the availability of cash, sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606 and, if
money or U.S. Government Obligations shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations deposited with the Trustee pursuant
to Section 401 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any interest upon any Security of
such series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of such series at its Maturity; or
(3) default in the payment of any sinking fund installment as
and when the same shall become due and payable by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than such series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of all Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) failure by the Company to make any payment at maturity,
including any applicable grace period, in respect of indebtedness,
which term as used herein means obligations (other than the Securities
of such series or non-recourse obligations) of, or guaranteed or
assumed by, the Company for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments relating to
indebtedness for borrowed money (such indebtedness of the Company,
"Indebtedness"), in an amount in excess of $10,000,000 or the
equivalent thereof in any other Currency and such failure shall have
continued for a period of 10 days after written notice thereof 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 not less
than 25% in aggregate principal amount of all Outstanding Securities
and stating that such notice is a "Notice of Default" hereunder; or
(6) default with respect to any Indebtedness, which default
results in the acceleration of Indebtedness in an amount in excess of
$10,000,000 or the equivalent thereof in any other Currency without
such Indebtedness having been discharged or such acceleration having
been cured, waived, rescinded or annulled for a period of 10 days
after written notice thereof 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 not less than 25% in aggregate principal
amount of all Outstanding Securities and stating that such notice is a
"Notice of Default" hereunder; or
(7) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or
any Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment, rehabilitation, conservation or composition of or in
respect of the Company or any Restricted Subsidiary under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, rehabilitation, conservator,
sequestrator or other similar official of the Company or any
Restricted Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(8) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree
or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company or any Restricted Subsidiary in
furtherance of any such action; or
(9) any other Event of Default provided with respect to
Securities of that series.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in clauses (7) and (8) of this Section 501, 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 bankruptcy law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in clauses (1) (2), (3) or (9) of
Section 501 above with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series (each such series voting as a
separate class) may declare the principal amount (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all of
the Securities of that series and interest accrued thereon, if any, to be
due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such amount
shall become immediately due and payable. If an Event of Default described
in clauses (4), (5), (6), (7) or (8) of Section 501 above with respect to
Securities of all series at the time Outstanding occurs and is continuing,
then in every such case, the Trustee or the Holders of not less than 25% in
aggregate principal amount of all Outstanding Securities hereunder (voting
as a single class) may declare the principal amount (or, if the Securities
of any series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all of
the Securities then Outstanding and interest accrued thereon, if any, to be
due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon such declaration such amount
shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series (or all Securities, as the case may be) 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 such series (voting as a separate class) with respect to an
Event of Default described in clauses (1), (2), (3) and (9) of Section 501
above, and the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series (voting as a single class) with
respect to an Event of Default described in clause (4), (5), (6), (7) or
(8) of Section 501 above, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all Defaulted Interest on all Securities
of such series (or on all Securities, as the case may be),
(B) the principal of (and premium, if any,
on) any Securities of such series (or of all Securities, as the
case may be) which has become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of such
series (or all Securities, as the case may be), other than the
non-payment of the principal of Securities which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if there is a
(1) default in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default 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 the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) or such portion of the principal
amount of any series of Original Issue Discount Securities as may be
specified in the terms of such series, and interest owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agent and counsel, and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
In connection with any filings of any claims pursuant to Section
317(a)(2) of the Trust Indenture Act (i) the Trustee shall be entitled to
collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same, (ii) unless prohibited by law
or applicable regulation, to vote on behalf of the Holders for the election
of a trustee in bankruptcy or other similar official, and any receiver
trustee or similar official in any proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, if the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee
any amounts due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee or any predecessor Trustee under Section 606.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee or any
predecessor Trustee under Section 606; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2), (3) or (9) of Section 501, or,
in the case of any Event of Default described in clause (4), (5), (6),
(7) or (8) of Section 501, the Holders of not less than 25% in
aggregate principal amount of all Outstanding Securities, shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series in the case of any Event of Default described in clause (1),
(2), (3) or (9) of Section 501, or, in the case of any Event of
Default described in clause (4), (5), (6), (7) or (8) of Section 501,
the Holders of not less than 25% in aggregate principal amount of all
Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Securities of the same series, in the case of any
Event of Default described in clauses (1), (2), (3) or (9) of Section 501,
or of Holders of all Securities in the case of any Event of Default
described in clauses (4), (5), (6), (7) or (8) of Section 501, 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 Holders of Securities
of the same series, in the case of any Event of Default described in
clauses (1), (2), (3) or (9) of Section 501, or of Holders of all
Securities in the case of any Event of Default described in clauses (4),
(5), (6), (7) or (8) of Section 501.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional,
to receive payment, as provided herein (including, if applicable, Article
Fourteen) of the principal of (and premium, if any) and (subject to Section
307) interest on, such Security on the respective due dates expressed in
such Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series (with each series voting as a separate
class) shall have the right to direct the time, method and place of
conducting any proceeding pertaining to such series for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, relating to or arising under clause (1), (2), (3) or (9) of
Section 501, and the Holders of not less than a majority in aggregate
principal amount of all Outstanding Securities shall have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee not relating to or arising under clause (1), (2), (3) or (9)
of Section 501, provided that, in each case:
(1) such direction shall not conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Prior to the declaration of the acceleration of the maturity of the
Securities of any series as provided in Section 501, the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities of such series, voting as a separate class, may, on behalf of
the Holders of all such Outstanding Securities of such series, waive any
past default or Event of Default described in clause (3) or (9) of Section
501, and the Holders of not less than a majority in aggregate principal
amount of all Outstanding Securities hereunder (voting as a single class)
may on behalf of the Holders of all Outstanding Securities hereunder waive
any past default or Event of Default described in clause (4), (5), (6), (7)
or (8) of Section 501 and its consequences, except a default in respect of
a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security
of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, or to retract (prior to the
requisite percentage for such waiver to become effective having been
obtained) any such waiver previously given, whether or not such Holders
remain Holders after such record date; provided that, unless such waiver
shall have become effective by virtue of such requisite percentage have
long been obtained prior to the date which is 90 days after such record
date, such waiver shall, automatically and without further action by the
Holder, be canceled and of no further force or effect.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of
directors and/or a Responsible Officer of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided further that in the case
of any default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until
at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 602. CERTAIN 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 resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorneys;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 605. 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 with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee or any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and the removal or resignation of the Trustee.
As security for the performance of such obligations of the Company, the
Trustee shall have a claim prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of (and premium, if any) or interest on
particular Securities.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
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.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of any 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 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 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 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 Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail 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 such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation.
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee 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 shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 609.
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 609, 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 609, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their names
and addresses appear in the Security Register. 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 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on 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 each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees cotrustees
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 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 necessary to more fully and certainly vest
in and confirm to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in the 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 611. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation 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 the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By____________________________
As Authenticating Agent
By____________________________
Authorized Officer"
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after December 1 of each year commencing with the
first December 1 after the first issuance of securities pursuant to this
Indenture, the Trustee shall transmit to the Holders of Securities, in the
manner provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of December 1 of such year if required by Section 313(a) of
the Trust Indenture Act.
SECTION 703. REPORTS BY COMPANY AND HOLDERS' LISTS.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit to all Holders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission; and
(4) furnish or cause to be furnished to the Trustee (a) not
more than 15 days after each Regular Record Date as defined in Section
101, but in any event not less frequently than semi-annually, a list
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company or any of its
Paying Agents other than the Trustee, as to the names and addresses of
the Holders of Securities to which such Regular Record Date applies as
of such Regular Record Date, and (b) at such other times as the
Trustee may request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar. The Trustee shall
preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in this Section and the names and addresses
of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as
provided in this Section upon receipt of a new list so furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
as a result of such transaction as having been incurred by the Company
at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required with such transaction, such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter, except in the case of a lease,
the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(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 (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or to change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interests coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 1007; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; 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 609(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to this
Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof payable in bankruptcy
pursuant to Section 504, or adversely affect any right of repayment at
the option of any Holder of any Security, or the Currency in which any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 1010 or the deletion of this proviso, in
accordance with the requirements of Sections 609(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture or to revoke
(prior to the requisite percentage for such consent to become effective
having been obtained) any such consent previously given, whether or not
such Holders remain Holders after such record date; provided, that unless
such consent shall have become effective by virtue of such requisite
percentage having been obtained prior to the date which is 90 days after
such record date, such consent shall, automatically and without further
action by the Holder, be canceled and of no further force or effect.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and 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 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of a 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 shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental Indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain or cause to be maintained in each Place
of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be
served, and the Company hereby initially appoints the Corporate Trust
Office of the Trustee as its agent to receive all such presentations,
surrenders, notices and demands. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company 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 specified with respect to any Securities pursuant
to Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or if so required under any other provision of
the Indenture, then the Company will maintain with respect to each such
series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum (in the Currency described in the preceding
paragraph) sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee)
for any series of Securities other than the Trustee to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money or U.S. Government Obligations deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment
of the principal of (and premium, if any) or interest on any Security of
any series and remaining unclaimed for three years after such principal
(and premium, if any) or interest has become due and payable shall be paid
to the Company on Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease, provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may (but
shall not be obligated to) at the expense of the Company cause to be
published once, in a newspaper published in an official language of the
country of publication or the English language, customarily published on
each Business Day and of general circulation in each Place of Payment
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Subsidiary and the rights (charter and
statutory) and franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right
or franchise or to retain any Subsidiary if the Company shall determine
that the preservation or retention thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries considered as a
whole and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties owned or leased by the
Company or any Subsidiary and used in the conduct of its business or the
business of any Subsidiary to be maintained and kept in such condition,
repair and working order and supplied with such equipment and will cause to
be made such repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary or
appropriate in the performance of its business, provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation and maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Company
or of the Subsidiary concerned, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material
respect to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material
taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all material lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings or otherwise and the Company shall have set aside on its books
adequate reserves with respect thereto (if and to the extent required by
generally accepted accounting principles).
SECTION 1007. LIMITATIONS ON LIENS.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create, issue, assume, incur or guarantee any
indebtedness for borrowed money which is secured by a Mortgage of any
nature on any of the present or future capital stock of any Restricted
Subsidiary (or any corporation, other than the Company, having direct or
indirect control of any Restricted Subsidiary) unless the Securities then
Outstanding shall be secured equally and ratably with or prior to such
other secured debt so long as it is outstanding.
SECTION 1008. LIMITATIONS ON DISPOSITION OF STOCK OF RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any Subsidiary to, sell,
transfer or otherwise dispose of any shares of capital stock of any
Restricted Subsidiary (or of any corporation having direct or indirect
control of any Restricted Subsidiary) except for, subject to Article Eight
(i) a sale, transfer or other disposition of any capital stock of any
Restricted Subsidiary to a wholly-owned Subsidiary of the Company; (ii) a
sale, transfer or other disposition of the entire capital stock of any
Restricted Subsidiary for at least fair value (as determined by the Board
of Directors of the Company acting in good faith); or (iii) a sale,
transfer or other disposition of the capital stock of any Restricted
Subsidiary for at least fair value (as determined by the Board of Directors
of the Company acting in good faith) if, after giving effect thereto, the
Company and its Subsidiaries would own more than 80% of the issued and
outstanding voting Stock of such Restricted Subsidiary.
SECTION 1009. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, by May 1 of each year, a
certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating, as to each
signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse of time
or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him
and the nature and status thereof.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive,
with respect to the Securities of all series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of all series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution and Company Order. In case of any
redemption at the election of the Company of less than all the Securities
of any series, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Securities of such
series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (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 for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date payable as
provided in Section 1106) will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Not later than one Business Day 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, segregate and hold in trust as
provided in Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to
be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series), and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security (including any Global Security) which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered; provided, that if a Global Security is so
surrendered, the new Global Security shall be in a denomination equal to
the unredeemed portion of the principal of the Global Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking
fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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 mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series
in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of a series (other than any previously called for
redemption) theretofore purchased or otherwise acquired by the Company,
and/or (2) receive credit for the principal amount of Securities of such
series which have been previously delivered to the Trustee by the Company
or for Securities of such 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 mandatory sinking fund payment with respect to the Securities of the
same series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided, however, 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 mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. 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 in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied by
delivering or crediting Securities of that series pursuant to Section 1202
(which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any,
not later than one Business Day before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in cash and shall
be sufficient to redeem the principal amount of such Securities subject to
a mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 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 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) in
cash a sum equal to any interest that will accrue to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking
fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for
any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date,
together with any unused balance of any preceding sinking fund payment or
payments for such series, does not exceed in the aggregate $100,000, the
Trustee, unless requested by the Company, shall not give the next
succeeding notice of the redemption of Securities of such series through
the operation of the sinking fund. Any such unused balance of moneys
deposited in such sinking fund shall be added to the sinking fund payment
for such series to be made in cash on the next succeeding sinking fund
payment date or, at the request of the Company, shall be applied at any
time or from time to time to the purchase of Securities of such series, by
public or private purchase, in the open market or otherwise, at a purchase
price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any paying agent will be provided
funds by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated Maturity
at the option of Holders thereof shall be made in accordance with the terms
of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in part
at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal
amount thereof, together with interest, if any, thereon accrued to the
repayment date specified in or pursuant to the terms of such Securities
(the "Repayment Date"). The Company covenants that not later than one
Business Day before the Repayment Date it will deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (or if so provided by the terms of
the Securities of any series, a percentage of the principal) of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to
be repaid on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. In order to exercise such option if so
specified in the terms of any Security, the Holder shall deliver, or cause
to be delivered, such Security at the place of payment therefor specified
in the terms of such Security (or at such other place or places which the
Company shall from time to time notify the Holders of such Securities) with
the "Option to Elect Repayment" form duly completed by the Holder (or by
the Holder's attorney duly authorized in writing), not earlier than 45 days
nor later than 30 days prior to the Repayment Date applicable to such
Security. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for
the portion of the principal amount of such Security surrendered that is
not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof, may not be
repaid in part if, following such repayment, the unpaid principal amount of
such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part.
Except as otherwise may be provided by the terms of any Security, exercise
of the repayment option by the Holder shall be irrevocable unless waived by
the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE
AND PAYABLE.
If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities,
such Securities or the portions thereof, as the case may be, to be repaid
shall become due and payable and shall be paid by the Company on the
Repayment Date therein specified, and on and after such Repayment Date
(unless the Company shall default in the payment of such Securities on such
Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest. Upon surrender of any such Security for repayment
in accordance with such provisions, the principal amount of such Security
so to be repaid shall be paid by the Company, together with accrued
interest, if any, to the Repayment Date; provided, however, that,
installments of interest, if any, whose Stated Maturity is on or prior to
the Repayment Date shall be payable (but without interest thereon, unless
the Company shall default in the payment thereof) 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 307.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest set forth in such Security.
SECTION 1305. SECURITIES REPAID IN PART.
Upon surrender of any Security which is to be repaid in part only,
the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge and at the expense of
the Company, a new Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE.
If pursuant to Section 301 provision is made for either or both of
(a) defeasance of the Securities of a series under Section 1402 or (b)
covenant defeasance of the Securities of a series under Section 1403, then
the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article Fourteen, shall be applicable to
the Securities of such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 1402 (if applicable) or Section 1403 (if
applicable) be applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article Fourteen.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of a series, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on and after the date the conditions
precedent set forth below are satisfied but subject to satisfaction of the
conditions subsequent set forth below (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company and upon Company
Request, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Outstanding Securities
of such series to receive, solely from the trust fund described in Section
1404 and as more fully set forth in such Section, payments of the principal
of (and premium, if any) and interest on such Securities when such payments
are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and such obligations as shall
be ancillary thereto, (C) the rights, powers, trusts, duties, immunities
and other provisions in respect of the Trustee hereunder and (D) this
Article Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402 notwithstanding the
prior exercise of its option under Section 1403 with respect to the
Securities of such series.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1401
applicable to this Section, the Company shall be released from its
obligations under Sections 1005, 1006, 1007 and 1008 with respect to the
Outstanding Securities of such series on and after the date the conditions
precedent set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of such series, 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, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section
or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions precedent or, as specifically
noted below, subsequent to application of either Section 1402 or Section
1403 to the Outstanding Securities of such series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one Business Day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in each case,
without reinvestment, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, (i) the
principal of (and premium, if any) and interest on the Outstanding
Securities of such series to maturity or redemption, as the case may
be, and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the due
dates thereof. Before such a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a
future date or dates in accordance with Article Eleven, which shall be
given effect in applying the foregoing.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 501(7) and (8)
are concerned, at any time during the period ending on the 123rd day
after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable
to the Company in respect of such deposit (it being understood that the
condition in this clause (B) is a condition subsequent and shall not be
deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest for purposes of the Trust Indenture Act with respect to any
securities of the Company or (B) result in the trust arising from such
deposit constituting, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as
amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound.
(5) The Company has delivered to the Trustee an Opinion of
Counsel, to the effect that, based on federal income tax laws then in
effect, the Holders of the Securities will not recognize income, gain
or loss on the Securities or the Securities of such series, as the
case may be, for federal income tax purposes as a result of such
defeasance or covenant defeasance and shall be subject to federal
income tax in the same amounts and at the same times as would have
been the case if such option had not been exercised.
(6) 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 either the
defeasance under Section 1402 or the covenant defeasance under Section
1403, as the case may be, have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit
pursuant to paragraph (1) above and the related exercise of the
Company's option under Section 1402 or Section 1403 (as the case may
be), registration is not required under the Investment Company Act of
1940, as amended, by the Company, with respect to the trust funds
representing such deposit, or by the trustee for such trust funds or
(ii) all necessary registrations under said Act have been effected.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 301.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
606 and, if money or U.S. Government Obligations shall have been
deposited with the Trustee pursuant to this Section, the obligations
of the Trustee under Section 1405 and the last paragraph of Section
1003 shall survive.
SECTION 1405. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 1401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited with the Trustee.
Anything in this Article Fourteen to the contrary notwithstanding,
if and to the extent the deposited money or U.S. Government Obligations (or
the proceeds thereof) either (i) cannot be applied by the Trustee in
accordance with this Section because of a court order or (ii) are for any
reason insufficient in amount, then the Company's obligations to pay
principal of (and premium, if any) and interest on the Securities of such
series shall be reinstated to the extent necessary to cover the deficiency
on any due date for payment. In any case specified in clause (i), the
Company's interest in the deposited money and U.S. Government Obligations
(and proceeds thereof) shall be reinstated to the extent the Company's
payment obligations are reinstated.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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.
AMBAC FINANCIAL GROUP, INC.
By _____________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By ________________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _________ day of April, 1998, before me personally came
_______________________, to me personally known, who, being by me duly
sworn, did depose and say that he is ________________ of Ambac Financial
Group, Inc., the corporation described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
[NOTARIAL SEAL]
__________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____________ day of April, 1998, before me personally came
_______________, to me personally known, who being by me duly sworn did
depose and say that s/he is a ___________ of First Union National Bank the
national banking association described in and which executed the above
instrument; that s/he knows the corporate seal of said national banking
association; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
national banking association; and that s/he signed his name thereto by like
authority.
[NOTARIAL SEAL]
____________________________
Notary Public
Exhibit No. 5.3
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-18,000,000 Debentures
CUSIP No. 023139306
AMBAC FINANCIAL GROUP, INC.
7.08% Debentures Due March 31, 2098
Principal Amount Per Debenture: $25.00
Ambac Financial Group, Inc., a Delaware corporation (hereinafter
called the "Company", which term includes any successor corporation under
the Indenture referred to below), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the Principal Amount of each
Debenture evidenced hereby (Two Hundred Million Dollars ($200,000,000) in
the aggregate) on March 31, 2098, and to pay interest thereon from April 6,
1998 or from the most recent date to which interest has been paid or duly
provided for, quarterly on March 31, June 30, September 30 and December 31
in each year (each, an "Interest Payment Date"), commencing June 30, 1998,
at the rate of 7.08% per annum, until the Principal Amount of each
Debenture evidenced hereby is paid or duly made available for payment.
Interest on the Debentures shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this
Certificate (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall
be the March 15, June 15, September 15 or December 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the registered Holder hereof on the relevant Regular Record Date
by virtue of having been such Holder, and may be paid to the Person in
whose name this Certificate (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Company, notice
whereof shall be given to each Person in whose name a Certificate
evidencing Debentures (defined below) is registered not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of and the interest on the Debentures
evidenced hereby will be made at the office or agency of the Company
maintained for that purpose in Newark, New Jersey, in such coin or currency
of the United States of America as at the time of payment is legal tender
for payment of public and private debts; provided, however, that, at the
option of the Company, interest may be paid by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register; provided, further, that payment to DTC or any successor
depositary may be made by wire transfer to the account designated by DTC or
such successor depositary in writing.
This Certificate evidences part of a duly authorized issue of
unsecured and unsubordinated indebtedness of the Company (the "Securities")
issued and to be issued in one or more series under an Indenture dated as
of April 1, 1998 (herein called, together with all indentures supplemental
thereto, the "Indenture") between the Company and First Union National
Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Certificate evidences Securities of the
series designated on the face hereof (each, a "Debenture"), limited
(subject to exceptions provided in the Indenture) to the aggregate
principal amount specified in the resolutions of the Special Securities
Committee of the Board of Directors of the Company adopted on April 1, 1998
(the "Resolutions") establishing the terms of the Debentures pursuant to
the Indenture.
Upon the occurrence of a Tax Event (as defined below), the Company
will have the right to shorten the maturity of the Debentures to the
minimum extent required, in the opinion of nationally recognized
independent tax counsel experienced in such matters ("Tax Counsel"), such
that, after the shortening of the maturity, interest paid on the Debentures
will be deductible for United States federal income tax purposes or, if
such counsel is unable to opine definitively as to such a minimum period,
the minimum extent so required as determined in good faith by the Board of
Directors of the Company, after receipt of an opinion of such counsel
regarding the applicable legal standards.
In the event that the Company elects to exercise its right to shorten
the maturity of the Debentures upon the occurrence of a Tax Event, the
Company will mail a notice of the shortened maturity to each Person in
whose name a Certificate evidencing Debentures is registered (as the owner
of the Debentures evidenced thereby) by first-class mail not more than 60
days after the occurrence of such Tax Event, stating the new maturity date
of the Debentures. Such notice shall be effective immediately upon mailing.
"Tax Event" means the receipt by the Company of an opinion of Tax
Counsel to the effect that, as a result of the occurrence of any of the
following events on or after April 1, 1998, there is more than an
insubstantial increase in the risk that interest paid by the Company on the
Debentures is not, or will not be, deductible, in whole or in part, by the
Company for United States federal income tax purposes: (i) any amendment
to, clarification of, or change (including any announced prospective
amendment, clarification or change) in any law, or any regulations of the
United States, (ii) any judicial decision, official administrative
pronouncement, ruling, regulatory procedure, notice or announcement
(including any notice or announcement of intent to adopt or promulgate any
ruling, regulatory procedure or regulation, and including the issuance of
proposed regulations) (each an "Administrative or Judicial Action"), or
(iii) any amendment to, clarification of, or change in any official
position with respect to, or any interpretation of, an Administrative or
Judicial Action or law or regulation of the United States that differs from
the position or interpretation that was previously generally accepted.
Except as set forth below, the Debentures are not redeemable prior to
March 31, 2003. On or after March 31, 2003, the Company, at its option, may
redeem the Debentures, in whole at any time or in part from time to time,
at 100% of their Principal Amount, plus accrued interest to the date of
redemption.
If a Tax Event occurs and in the opinion of Tax Counsel, there would,
notwithstanding the shortening of the maturity of the Debentures, be more
than an insubstantial risk that interest paid by the Company on the
Debentures is not, or will not be, deductible, in whole or in part, by the
Company for United States federal income tax purposes, the Company will
have the right, within 90 days following the occurrence of such Tax Event,
to redeem the Debentures in whole (but not in part) at a redemption price
equal to 100% of the Principal Amount of such Debentures, plus accrued
interest thereon to the date of redemption.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Person in whose name a
Certificate evidencing Debentures to be redeemed is registered at its
registered address. Unless the Company defaults in payment of the
redemption price, on and after the redemption date interest will cease to
accrue on such Debentures called for redemption.
Except as provided above, the Debentures are not redeemable by the
Company prior to maturity and are not subject to any sinking fund.
If an Event of Default with respect to the Debentures shall occur and
be continuing, the Principal Amount of the Debentures may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series
issued under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of each series
affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities of any series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder
of this Certificate shall be conclusive and binding upon such Holder and
upon all future Holders of this Certificate and of any Debentures evidenced
by a Certificate issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Certificate.
No reference herein to the Indenture and no provision of this
Certificate or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on the Debentures evidenced by this Certificate, at the times,
place and rate, and in the coin or currency, herein and in the Indenture
prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and in this Certificate, the transfer of the Debentures
evidenced by this Certificate may be registered on the Security Register
upon surrender of this Certificate for registration of transfer at the
office or agency of the Company maintained for the purpose in any place
where the principal of and interest on the Debentures are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Certificates evidencing Debentures of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Debentures are issuable only in registered form without coupons
in the denominations specified in the Resolutions establishing the terms of
the Debentures, all as more fully provided in the Indenture and such
Resolutions. As provided in the Indenture and in such Resolutions, and
subject to certain limitations set forth in the Indenture, such Resolutions
and in this Certificate, this Certificate is exchangeable for a like
aggregate principal amount of Debentures of this series in different
authorized denominations, as requested by the Holders surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith,
other than in certain cases provided in the Indenture.
Prior to due presentment of this Certificate for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Certificate is registered
as the owner of the Debentures evidenced hereby for all purposes, whether
or not such Debentures be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the Debentures (subject to
certain exceptions) or (ii) the Company may be released from its obligation
under specified covenants and agreements in the Indenture, in each case if
the Company irrevocably deposits with the Trustee money or U.S. Government
Obligations sufficient to pay and discharge the entire indebtedness on all
Debentures of this series, and satisfies certain other conditions, all as
more fully provided in the Indenture.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Certificate which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee under the Indenture by the manual signature of
one of its authorized signatories, this Certificate shall not be entitled
to any benefits under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] AMBAC FINANCIAL GROUP, INC.
Attest: ________________________ By: __________________________________
Name: Anne G. Gill Name: Frank J. Bivona
Title: Vice President, Counsel Title: Executive Vice President, Chief
and Assistant Secretary Financial Officer and Treasurer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: April 6, 1998 FIRST UNION NATIONAL BANK,
as Trustee
By: _________________________________
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT--______ Custodian ______
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors
of survivorship and not as Act _______________________
tenants in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________
___________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
___________________________________________________________________________
the Debentures evidenced by the within Certificate and all rights
thereunder, hereby irrevocably constituting and appointing
___________________________________________________________________________
to transfer said Debentures on the books of the Company with full power of
substitution in the premises.
Dated:_____________________________
Notice: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration or enlargement or any change whatever.
