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As filed with the Securities and Exchange Commission on September 16, 1996
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AAMES FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 95-4340340
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3731 WILSHIRE BOULEVARD, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90010 (213)351-6100
(Address, Including Zip code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
BARBARA S. POLSKY, ESQ.
AAMES FINANCIAL CORPORATION
3731 WILSHIRE BOULEVARD, 10TH FLOOR
LOS ANGELES, CALIFORNIA 90010
(213) 351-6100
(Name, Address, Including Zip code, and Telephone Number,
Including Area Code, of Agent for Service)
----------------------
Copy to:
C.N. FRANKLIN REDDICK III, ESQ.
TROOP MEISINGER STEUBER & PASICH
10940 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 824-7000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities on this form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering: [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, Please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount to Be Proposed Maximum Offering Proposed Maximum Amount of
TITLE OF SHARES TO BE REGISTERED Registered(1) Price Per Share(1) Aggregate Offering Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities and Common Stock, --- --- $300,000,000 $103,448
par value $0.001 per share(3)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Not included pursuant to Rule 457(o).
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) Includes certain Preferred Stock Purchase Rights of Registrant,
exercisable upon the occurrence of certain events. See "Description
of Capital Stock -- Anti-takeover Provisions" in the Prospectus which
constitutes a part of this Registration Statement.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 2
Subject to Completion, Dated September __, 1996
PROSPECTUS
$300,000,000
AAMES FINANCIAL CORPORATION
DEBT SECURITIES AND COMMON STOCK
------------
This Prospectus relates to the public offering by Aames Financial
Corporation, a Delaware corporation ("Aames" or the "Company"), of its unsecured
debt securities which may be issued from time to time in one or more series (the
"Debt Securities") and shares of its Common Stock, par value $0.001 per share
(the "Common Stock"), with an aggregate public offering price of up to
$300,000,000. The Debt Securities and the Common Stock are collectively referred
to herein as the "Securities."
In the case of Debt Securities, the specific title, the aggregate
principal amount, the purchase price, the maturity, the rate (or method of
calculation) and time of payment of interest, if any, the right of the Company,
if any, to defer payment of interest on the Debt Securities and the maximum
length of such deferral period, any redemption or sinking fund provisions, any
conversion provisions, any subordination terms, any covenants and any other
specific term of the Debt Securities will be set forth in a supplement to this
Prospectus (each, a "Prospectus Supplement"). In the case of Common Stock, the
specific number of shares and the issuance price per share will be set forth in
the Prospectus Supplement. The Prospectus Supplement will also disclose whether
the Securities will be listed on a national securities exchange and if they are
not to be listed, the possible effects thereof on their marketability. If so
specified in the Prospectus Supplement, Securities may be issued, in whole or in
part, in book-entry form. The Risk Factors applicable to any offering of the
Securities will be contained in the Prospectus Supplement.
Securities may be sold directly, through agents from time to time,
through underwriters and/or dealers or through a combination of such methods. If
any agent of the Company or any underwriter is involved in the sale of the
Securities, the name of such agent or underwriter and any applicable commission
or discount will be set forth in the Prospectus Supplement. See "Plan of
Distribution."
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION REVIEWED OR PASSED UPON THE ACCURACY OR
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------
The date of this Prospectus is ______, 1996
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AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on
Form S-3 (the "Registration Statement) under the Securities Act with respect to
the Common Stock offered hereby. This Prospectus, which constitutes part of the
Registration Statement does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Company and the Common Stock offered hereby,
reference is hereby made to such Registration Statement, and the exhibits and
schedules thereto which may be obtained from the Commission's principal office
in Washington, D.C., upon payment of the fees prescribed by the Commission.
Statements contained in this Prospectus as to the contents of any contract,
agreement or other document are not necessarily complete, and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement of which this Prospectus forms a part.
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files periodic reports and other information with the Securities and
Exchange Commission (the "Commission"). For further information with respect to
the Company, reference is hereby made to such reports and other information
which can be inspected and copied at the public reference facilities maintained
by the Commission at Room 1025, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's Regional Offices located at Seven World Trade Center,
13th Floor, New York, New York 10048 and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies may also be obtained at
prescribed rates from the Public Reference Section of the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005, on which exchange the Company's Common Stock is
listed.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are incorporated by reference into this
Prospectus:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1996; and
(2) the Company's Current Reports on Form 8-K dated July 10, 1996,
August 7, 1996, August 13, 1996 and September 12, 1996
(including Form 8-K/A dated September 16, 1996).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the securities covered by this Prospectus shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained herein or in a
document, all or a portion of which is incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, upon the oral or written
request of any such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits to such documents, unless such exhibits
are expressly incorporated by reference into such documents). Written requests
for such copies should be directed to the Company's Secretary at 3731 Wilshire
Boulevard, 10th Floor, Los Angeles, California 90010, or made by telephone at
(213) 351-6100.
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THE COMPANY
Aames Financial Corporation (the "Company"), founded in 1954, is a
consumer finance company engaged in the business of originating, purchasing,
selling and servicing home equity mortgage loans secured by single family
residences. The Company's principal market is credit-impaired borrowers who have
significant equity in their homes but whose borrowing needs are not being met by
traditional financial institutions due to credit exceptions or other factors.
The Company focuses its efforts on collateral lending and believes that it
originates and purchases a greater proportion of lower credit grade loans ("C-"
and "D" loans) than most other lenders to credit-impaired borrowers. These lower
credit grade loans are characterized by lower combined loan-to-value ratios and
higher average interest rates than higher credit grade loans ("A-," "B" and "C"
loans). The Company believes lower credit-quality borrowers represent an
underserved niche of the home equity loan market and present an opportunity to
earn a superior return for the risks assumed. Although the Company has
historically experienced delinquency rates that are higher than those prevailing
in its industry, management believes the Company's historical loan losses are
generally lower than those experienced by most other lenders to credit-impaired
borrowers because of the lower combined loan-to-value ratios on the Company's
lower credit grade loans. The mortgage loans originated and purchased by the
Company are generally used by borrowers to consolidate indebtedness or to
finance other consumer needs rather than to purchase homes. Consequently, the
Company believes that it is not as dependent as traditional mortgage bankers on
levels of home sales or refinancing activity prevailing in its markets.
The Company originates and purchases loans through three production
channels. The Company has historically originated its loans through its retail
loan office network. In 1994, the Company diversified its production channels to
include a wholesale correspondent program which consisted initially of
purchasing loans from other mortgage bankers and financial institutions
underwritten in accordance with the Company's guidelines. In fiscal 1996, this
program was expanded to include the purchase of loans in bulk from other
mortgage bankers and financial institutions. On August 28, 1996, the Company
acquired One Stop Mortgage, Inc. ("One Stop"), which further diversified the
Company's production channels to include the originations and purchase of
mortgage loans from a network of independent mortgage brokers. While the Company
intends to continue focusing on its traditional niche in the "C-" and "D" credit
grade loans, the Company also intends to continue to diversify the loans it
originates and purchases through its three production channels to include more
"A-," "B" and "C" credit grade loans. The Company underwrites every loan it
originates and re-underwrites and reviews appraisals on all loans it purchases.
Substantially all of the mortgage loans originated and purchased by the
Company are sold in the secondary market through public securitizations in order
to enhance profitability, maximize liquidity and reduce the Company's exposure
to fluctuations in interest rates. In a securitization, the Company recognizes a
gain on the sale of loans securitized upon the closing of the securitization,
but does not receive the excess servicing, which is payable over the actual life
of the loans securitized. The excess servicing represents, over the estimated
life of the loans, the excess of the weighted average interest rate on the pool
of loans sold over the sum of the investor pass-through rate, normal servicing
fee and the monoline insurance fee. The net present value of that excess
(determined based on certain prepayment and loss assumptions) less transaction
expenses is recorded as excess servicing gain or loss at the time of the closing
of the securitization. The Company securitized and sold in the secondary market
$107 million, $317 million and $791 million of loans in the years ended June 30,
1994, 1995 and 1996, respectively. Each of the Company's securitizations has
been credit-enhanced by insurance provided by a monoline insurance company to
receive ratings of "Aaa" by Moody's Investors Service and "AAA" from Standard &
Poor's.
The Company retains the servicing rights (collecting loan payments and
handling borrower defaults) to substantially all of the loans it originates or
purchases. At June 30, 1996, the Company had a servicing portfolio of $1.25
billion, 27% of which was serviced by subservicers. In fiscal 1996, the Company
serviced directly all loans in its servicing portfolio which were secured by
mortgaged properties located in Arizona, California, Colorado, Nevada, Oregon,
Utah and Washington. Loans secured by properties located in other states were
serviced through one or more subservicers which were paid a fee per loan and a
participation in certain other fees paid by the borrowers. The Company will
implement in fiscal 1997 a new servicing system which will provide the Company
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the capability to service in house all loans originated or purchased by it
regardless of the state in which the mortgaged property is located
The Company is a Delaware corporation with the principal executive
offices located at 3731 Wilshire Boulevard, 10th floor, Los Angeles, California
90010, telephone number (213) 351-6100.
USE OF PROCEEDS
The primary purpose of this Offering is to provide the Company with
additional capital to fund its growth, including increasing the amount of loans
the Company can fund and hold for pooling and sale in the secondary market,
general corporate purposes, and for the possible acquisition of other related
businesses as opportunities arise. Although the Company from time to time
considers acquisitions and other opportunities for future growth, the Company
has not entered into any arrangement, agreement, or understanding with respect
to future acquisitions. Pending their ultimate application, the net proceeds
will be invested in high quality, short-term, interest-bearing investments and
deposit accounts.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges represents the ratio
of (i) the sum of income before taxes plus interest expense to (ii) interest
expense. The ratio of earning to fixed charges for each of the five fiscal years
ended June 30, 1992, 1993, 1994, 1995 and 1996 was 25:1, 41:1, 29:1, 6.4:1
and 6.7:1, respectively.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Company and the trustee named in the applicable Prospectus
Supplement as trustee (the "Trustee"). The statements under this caption are
brief summaries of certain provisions contained in the Indenture, do not purport
to be complete and are qualified in their entirety by reference to the
Indenture, a copy of which is an exhibit to and incorporated in the Registration
Statement. Terms used but not defined under this caption have the meanings given
to them in the Indenture.
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of any Debt Securities
and the extent, if any, to which such general provisions do not apply to such
Debt Securities will be described in the Prospectus Supplement relating to such
Debt Securities.
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder, and the Indenture provides that Debt Securities of any series
may be issued thereunder up to the aggregate principal amount which may be
authorized from time to time by the Company's board of directors ("Board of
Directors").
Debt Securities of a series may be issuable in registered form with or
without coupons ("Registered Securities"), in bearer form with or without
coupons attached ("Bearer Securities") or in the form of one or more global
securities in registered or bearer form (each a "Global Security"). Bearer
Securities, if any, will be offered only to non-United States persons and to
offices located outside the United States of certain United States financial
institutions. Reference is made to the Prospectus Supplement for a description
of the following terms, where applicable, of each series of Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of such Debt
Securities; (2) the limit, if any, on the aggregate principal amount or
aggregate initial public offering price of such Debt Securities; (3) the
priority of payment of such Debt Securities; (4) the price or prices (which may
be expressed as a percentage of the aggregate principal amount thereof) at which
the Debt Securities will be issued; (5) the date or dates on which the principal
of the Debt Securities will be payable; (6) the rate or rates (which may be
fixed or variable) per annum at which such Debt Securities will bear interest,
if any, or the method of determining the same; (7) the date or dates from which
such interest, if any, on the Debt Securities will accrue, the date or dates on
which such interest, if any, will be payable, the date or dates on which payment
of such interest,
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if any, will commence and the date, if any, specified in the Debt Security as
the "Regular Record Date" for such interest payment dates; (8) the extent to
which any of the Debt Securities will be issuable in temporary or permanent
global form, and the manner in which any interest payable on a temporary or
permanent global Debt Security will be paid; (9) each office or agency where,
subject to the terms of the applicable Indenture, the Debt Securities may be
presented for registration of transfer or exchange; (10) the place or places
where the principal of (and premium, if any) and interest, if any, on the Debt
Securities will be payable; (11) the date or dates, if any, after which such
Debt Securities may be redeemed or purchased in whole or in part, at the option
of the Company, or may be required to be purchased or redeemed at the option of
the holder, and the redemption or repayment price or prices thereof; (12) the
denomination or denominations in which such Debt Securities are authorized to be
issued; (13) any index used to determine the amount of payments of principal of,
premium, if any, and interest on the Debt Securities; (14) whether any of the
Debt Securities are to be issuable as Bearer Securities and/or Registered
Securities, and if issuable as Bearer Securities, any limitations on issuance of
such Bearer Securities and any provisions regarding the transfer or exchange of
such Bearer Securities (including exchange for registered Debt Securities of the
same series); (15) the payment of any additional amounts with respect to the
Debt Securities; (16) information with respect to book-entry procedures not
currently set forth in the Indenture; (17) any additional covenants or Events of
Default not currently set forth in the Indenture; and (18) any other terms of
such Debt Securities.
EVENTS OF DEFAULT, WAIVERS, ETC.
An Event of Default with respect to Debt Securities of any series is
defined in the Indenture as (i) default in the payment of the principal of or
premium, if any, on any Debt Security of such series when due, (ii) default in
the payment of interest upon any Debt Security of such series when due and the
continuance of such default for a period of 30 days, (iii) default in the
observance or performance of any other covenant or agreement of the Company or
any Guarantor in the Debt Securities of such series or the Indenture and
continuance of such default for 30 days after written notice, (iv) certain
events of bankruptcy, insolvency or reorganization of the Company or any
Guarantor or (v) any other Event of Default provided with respect to Debt
Securities of any series.
If any Event of Default (other than certain events of bankruptcy,
insolvency or reorganization) with respect to any series of Debt Securities for
which there are Debt Securities outstanding under the Indenture occurs and is
continuing, either the applicable Trustee or the holders of not less than 25% in
aggregate principal amount of the Debt Securities of such series may declare the
principal amount of all Debt Securities of that series to be immediately due and
payable. If any Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or any Guarantor occurs, the
principal amount of all Debt Securities of that series shall be ipso facto
immediately due and payable. The holders of a majority in aggregate principal
amount of the Debt Securities of any series outstanding under the Indenture may
waive the consequences of an Event of Default resulting in acceleration of such
Debt Securities, but only if all Events of Default have been remedied and all
payments due (other than those due as a result of acceleration) have been made.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion, or at the written request of holders of not less than a majority in
aggregate principal amount of the Debt Securities of any series outstanding
under the Indenture and upon reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such request and subject to
certain other conditions set forth in the Indenture, proceed to protect the
rights of the holders of all the Debt Securities of such series. If the Trustee
fails within 60 days after its receipt of such a written request and offer of
indemnity to institute any such proceeding, any holder of a Debt Security who
has previously given notice to the Trustee of a continuing Event of Default may
institute such a proceeding. The holders of a majority in aggregate principal
amount of Debt Securities of any series outstanding under the Indenture may
waive any past default under the Indenture with respect to such series except a
default in the payment of principal of, premium, if any, or interest on the Debt
Securities of such series and except for the waiver of a covenant or provision
that, pursuant to the Indenture, cannot be modified or amended without the
consent of holders of all such Debt Securities then outstanding.
The Indenture provides that in the event of an Event of Default
specified in clause (i) or (ii) of the first paragraph under "Events of Default,
Waivers, Etc.," the Company will, upon demand of the applicable Trustee, pay to
it, for the benefit of the holder of any such Debt Security, the whole amount
then due and payable on such
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Debt Security for principal, premium, if any, and interest. The Indenture
further provides that if the Company fails to pay such amount forthwith upon
such demand, the applicable Trustee may, among other things, institute a
judicial proceeding for the collection thereof.
The Indenture also provide that notwithstanding any other provision of
the Indenture, each holder of any Debt Security of any series will have the
right to institute suit for the enforcement of any payment of principal of,
premium, if any, and interest on such Debt Security when due and that such right
may not be impaired without the consent of such holder.
The Company is required to file annually with the Trustee a written
statement of officers as to the existence or non-existence of defaults under the
Indenture or the Debt Securities.
GUARANTEE
The Indenture provides that one or more guarantors (the "Guarantors")
may guaranty the performance and punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Company under
the Debt Securities of any series and the Indenture (a "Guarantee"). The
liability of any Guarantor under a Guarantee is independent of and not in
consideration of or contingent upon the liability of the Company or any other
party obligated under the Debt Securities or the Indenture, and a separate
action or actions may be brought or prosecuted against any such Guarantor,
whether or not any action is brought or prosecuted against the Company or any
other party obligated under the Debt Securities or the Indenture or whether the
Company or any other party obligated under the Debt Securities or the Indenture
is joined in any such action or actions. Such Guarantee, however, will be
limited to an amount not to exceed the maximum amount that can be Guaranteed by
such Guarantor without rendering the Guarantee, as it relates to such Guarantor,
voidable under Section 548 of the Federal Bankruptcy Code or any applicable
provisions of comparable state law.
The Guarantee of any Guarantor is a continuing guaranty and will remain
in full force and effect until payment in full of all of the guaranteed
obligations.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement,
Debt Securities will be issued only as Registered Securities. If Bearer
Securities are issued, the United States Federal income tax consequences and
other special considerations, procedures and limitations applicable to such
Bearer Securities will be described in the Prospectus Supplement relating
thereto.
Unless otherwise indicated in the applicable Prospectus Supplement,
Debt Securities issued as Registered Securities will be without coupons. Debt
Securities issued as Bearer Securities will have interest coupons attached,
unless issued as zero coupon securities.
Registered Securities (other than a Global Security) may be presented
for transfer (with the form of transfer endorsed thereon duly executed) or
exchanged for other Debt Securities of the same series at the office of the
security registrar appointed by the Company (the "Security Registrar") specified
according to the terms of the applicable Indenture. The Company has agreed in
the Indenture that, with respect to Registered Securities having the City of New
York as a place of payment, the Company will appoint a Security Registrar or a
co-security registrar, as may be appropriate (the "Co-Security Registrar"),
located in the City of New York for such transfer or exchange. Unless otherwise
provided in the applicable Prospectus Supplement, such transfer or exchange
shall be made without service charge, but the Company may require payment of any
taxes or other governmental charges as described in the applicable Indenture.
Provisions relating to the exchange of Bearer Securities for other Debt
Securities of the same series (including, if applicable, Registered Securities)
will be described in the applicable Prospectus Supplement. In no event, however,
will Registered Securities be exchangeable for Bearer Securities.
GLOBAL SECURITIES
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Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary (the "Depositary") identified in the Prospectus Supplement
relating to such series. Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form. Unless and until it is
exchanged in whole or in part for the individual Debt Securities represented
thereby, a Global Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any nominee to a successor Depositary or any
nominee of such successor.
The specific terms of the depositary arrangement with respect to a
series of Debt Securities and certain limitations and restrictions relating to a
series of Debt Securities in the form of one or more Global Securities will be
described in the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts shall be designated by the
underwriters or agents with respect to such Debt Securities. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities of such series in definitive form and will
not be considered the owners or holders thereof under the Indenture governing
such Debt Securities.
Payments of principal of, premium, if any, and interest on individual
Debt Securities represented by a Global Security registered in the name of a
Depositary or its nominee will be made to the Depositary or its nominee, as the
case may be, as the registered owner of the Global Security representing such
Debt Securities. None of the Company, the Trustee for such Debt Securities, any
person authorized by the Company to pay the principal of, premium, if any, or
interest on any Debt Securities or any coupons appertaining thereto on behalf of
the Company ("Paying Agent"), and the Security Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Subject to certain restrictions relating to Bearer Securities, the
Company expects that the Depositary for a series of Debt Securities or its
nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Security representing any of such Debt Securities,
will credit participants' accounts immediately with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security for such Debt Securities as shown on the records of such
Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments will be
the responsibility of such participants. With respect to owners of beneficial
interests in a temporary Global Security
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representing Bearer Securities, receipt by such beneficial owners of payments of
principal, premium or interest in respect thereof will be subject to additional
restrictions.
If the Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the Company will
issue individual Debt Securities of such series in definitive form in exchange
for the Global Security representing such series of Debt Securities. In
addition, the Company may at any time and in its sole discretion, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities, determine not to have any Debt Securities of a series represented by
one or more Global Securities and, in such event, will issue individual Debt
Securities of such series in definitive form in exchange for the Global Security
or Securities representing such series of Debt Securities. Further, if the
Company so specifies with respect to the Debt Securities of a series, an owner
of a beneficial interest in a Global Security representing Debt Securities of
such series may, on terms acceptable to the Company, the Trustee and the
Depositary for such Global Security, receive Debt Securities of such series in
definitive form in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name (if the Debt Securities of such series are issuable as Registered
Securities). Debt Securities of such series so issued in definitive form will be
issued (i) as Registered Securities in denominations, unless otherwise specified
by the Company, of $1,000 and integral multiples thereof if the Debt Securities
of such series are issuable as Registered Securities, (ii) as Bearer Securities
in the denomination, unless otherwise specified by the Company, of $5,000 if the
Debt Securities of such series are issuable as Bearer Securities or (iii) as
either Registered or Bearer Securities, if the Debt Securities of such series
are issuable in either form. Certain restrictions may apply, however, on the
issuance of a Bearer Security in definitive form in exchange for an interest in
a Global Security.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of and premium, if any, on Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time. At the option of the Company, payment of any
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the applicable security register kept by
the Company ("Security Register"). Unless otherwise indicated in an applicable
Prospectus Supplement, payment of any installment of interest on Registered
Securities will be made to the person in whose name such Debt Security is
registered at the close of business on the Regular Record Date for such payment.
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of, premium, if any, and any interest on Bearer Securities
will be payable, subject to any applicable laws and regulations, at the offices
of such Paying Agents outside the United States as the Company may designate
from time to time or, at the option of the holder, by check mailed to any
address outside the United States or by transfer to an account maintained by the
payee with a bank located outside the United States. Unless otherwise indicated
in an applicable Prospectus Supplement, payment of interest on Bearer Securities
will be made only against surrender of the coupon relating to such interest
payment date. No payment with respect to any Bearer Security will be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States.
CONDOLIDATION, MERGER OR SALE OF ASSETS
The Indenture provides that neither the Company nor any Guarantor may,
without the consent of the holders of the Debt Securities outstanding under the
Indenture, consolidate with, merge into or transfer all or substantially all of
the property and assets of any division or line of business to any single
person, unless (i) any such successor assumes the Company's or such Guarantor's
obligations on the applicable Debt Securities and under the Indenture, (ii)
after giving effect thereto, no Event of Default shall have happened and be
continuing and (iii) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel each stating that such consolidation,
merger, conveyance or transfer and the supplemental indenture pursuant to which
the successor assumes the
8
<PAGE> 10
Company's or such Guarantor's obligations on the applicable Debt Securities
comply with Article 10 of the Indenture and that all conditions precedent
therein provided for relating to such transaction have been complied with.
Accordingly, unless otherwise specified in an applicable Prospectus Supplement,
any such consolidation, merger or transfer of assets substantially as an
entirety that meets the conditions described above would not create any Event of
Default which would entitle holders of the Debt Securities, or the Trustee on
their behalf, to take any of the actions described above under "Events of
Default, Waivers, Etc." Additionally, upon any such consolidation or merger, or
any such conveyance or transfer of the properties and assets of the Company or
any Guarantor substantially as an entirety, the successor person formed by such
consolidation or into which the Company or such Guarantor is merged or to which
such conveyance or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or such Guarantor under
the Indenture with the same effect as if such successor person had been named as
the Company or such Guarantor. In the event of any such conveyance or transfer,
the Company as the predecessor corporation and such Guarantor shall be relieved
of all obligations and covenants under the Indenture and may be dissolved, wound
up and liquidated at any time thereafter.
LEVERAGED AND OTHER TRANSACTIONS
The Indenture contains no provisions which would afford holders of the
Debt Securities protection in the event of a highly leveraged or other
transaction involving the Company which could adversely affect the holders of
Debt Securities. Provisions, if any, applicable to any such transaction will be
described in an applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURE; WAIVER OF COVENANTS
The Indenture provides that, with the consent of the holders of not
less than a majority in aggregate principal amount of the outstanding Debt
Securities of each affected series, modifications and alterations of the
Indenture may be made which affect the rights of the holders of such Debt
Securities, except that no such modification or alteration may be made without
the consent of the holder of each Debt Security so affected which would, among
other things, (i) change the maturity of the principal of, or of any installment
of interest (or premium, if any) on, any Debt Security issued pursuant to the
Indenture, or reduce the principal amount thereof or any premium thereon or the
rate of interest thereon, or change the method of calculation of interest or the
currency of payment of principal or interest (or premium, if any) on, or reduce
the minimum rate of interest thereon, or impair the right to institute suit for
the enforcement of any such payment on or with respect to any such Debt Security
or (ii) reduce the above-stated percentage in principal amount of outstanding
Debt Securities required to modify or alter the Indenture.
The Indenture also provides that, without the consent of any holder of
Debt Securities, the Company, when authorized by a resolution of its Board of
Directors, and the Trustee, at any time and from time to time, may enter into
one or more supplemental Indenture to the Indenture to (i) evidence the
succession of another corporation or person to the Company or any Guarantor, as
the case may be, in the Indenture and in the Debt Securities, (ii) evidence and
provide for a successor Trustee, (iii) add to the covenants of the Company or
any Guarantor for the benefit of the holders of Debt Securities of all or any
series or to surrender any right or power conferred upon the Company or any
Guarantor in the Indenture, (iv) cure any ambiguity, correct or supplement any
provision which may be inconsistent or make any other provisions with respect to
matters or questions arising under the Indenture, provided the interests of the
holders of Debt Securities of any series are not adversely affected, (v) add any
additional Events of Default, (vi) make certain changes with respect to Bearer
Securities which do not adversely affect the interests of the holders of Debt
Securities of any series, (vii) add to, change or eliminate any provision of the
Indenture; provided that such addition, change or elimination (a) becomes
effective only when there is no Debt Security outstanding of a series created
prior to the execution of such supplemental indenture which is adversely
affected or (b) does not apply to any outstanding Debt Securities, (viii)
establish the form or terms of Debt Securities of any series as permitted under
the Indenture, (ix) evidence any changes to corporate Trustee eligibility
authorized by the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), or (x) add to or change or eliminate any provision of the Indenture as
necessary to comply with the Trust Indenture Act provided such action does not
adversely affect the interests of the holders of Debt Securities of any series.
9
<PAGE> 11
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
if and when the Trustee becomes a creditor of the Company (or any other obligor
upon the Debt Securities), regarding the collection of such claims against the
Company (or any such other obligor). Except as provided in the following
sentence, the Indenture does not prohibit the Trustee from serving as trustee
under any other indenture to which the Company may be a party from time to time
or from engaging in other transactions with the Company. If the Trustee acquires
any conflicting interest and there is a default with respect to any series of
Debt Securities, it must eliminate such conflict or resign.
DESCRIPTION OF CAPITAL STOCK
The total number of shares that the Company is authorized to issue is
51,000,000, consisting of 50,000,000 shares of Common Stock, par value $0.001
per share, and 1,000,000 shares of Preferred Stock, par value $0.001 per share.
The following statements are brief summaries of certain provisions relating to
the Company's capital stock.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share
held of record on all matters to be voted on by the stockholders. The holders of
Common Stock are entitled to receive ratably dividends when, as and if declared
by the Board of Directors out of funds legally available therefor. In the event
of a liquidation, dissolution or winding up of the Company, the holders of
Common Stock are entitled, subject to the rights of holders of Preferred Stock
issued by the Company, if any, to share ratably in all assets remaining
available for distribution to them after payment of liabilities and after
provision is made for each class of stock, if any, having preference over the
Common Stock.
The holders of Common Stock, as such, have no conversion, preemptive or
other subscription rights and there are no redemption provisions applicable to
the Common Stock. All the outstanding shares of Common Stock are, and the shares
of Common Stock to be issued on conversion of the Debentures offered hereby will
be, validly issued, fully paid and nonassessable.
The Company distributes periodic reports and other information,
including notices of annual meetings and special meetings of the stockholders of
the Company, to recordholders of Common Stock to the addresses indicated on the
Company's stock records.
PREFERRED STOCK
The Board of Directors has the authority to issue the authorized and
unissued Preferred Stock in one series with such designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without stockholder approval,
to issue Preferred Stock with dividend, liquidation, conversion, voting or other
rights which adversely affect the voting power or other rights of the holders of
the Common Stock. In the event of issuance, the Preferred Stock could be
utilized under certain circumstances as a way of discouraging, delaying or
preventing an acquisition or change in control of the Company.
The Company does not currently intend to issue any shares of its Preferred
Stock.
ANTI-TAKEOVER PROVISIONS
The Company's Certificate of Incorporation and Bylaws include a number
of provisions which may have the effect of discouraging persons from pursuing
non-negotiated takeover attempts. These provisions include a
10
<PAGE> 12
classified Board of Directors, the inability of stockholders to take action by
written consent without a meeting, the inability of stockholders to call for a
special meeting of stockholders under certain circumstances without the approval
of the Board and the inability of stockholders to remove directors without
cause.
The Company's employment arrangements with its Chief Executive Officer,
Chief Operating Officer, Executive Vice President and President of One Stop,
and certain other senior executives provide for the payment of multiple years
of compensation and acceleration of stock options in the event of certain
changes in control.
Each share of the Company's outstanding Common Stock also evidences one
stock purchase right (a "Right") pursuant to the terms and conditions of a
Stockholders' Rights Plan adopted by the Company in June 1996 (the "Rights
Plan"). In general, the Rights will not be exercisable, or transferable, apart
from the Common Stock, until the tenth day after a person or group (other than
an "Exempt Person" as defined in the Rights Plan) either: (i) acquires
beneficial ownership of 15% or more of the outstanding Common Stock; or (ii)
commences a tender offer or an exchange offer, to acquire beneficial ownership
of 15% or more of the outstanding Common Stock; or (iii) who previously acquired
15% or more of the Common Stock in a transaction approved by the Board of
Directors increases its ownership of Common Stock by more than 1%; or (iv) files
a registration statement with the SEC with respect to an exchange offer to
acquire 15% or more of the Common Stock; or (v) who beneficially owns 10% or
more of the outstanding Common Stock is declared an "Adverse Person" by the
Board of Directors
Following an event described above, each Right will be converted into a
right to purchase from the Company, for the Exercise price, that number of one
one-hundredth (1/100th) of a share of Preferred Stock (or, in certain
circumstances, Common Stock, cash, property, or other securities of the Company)
having a market value of twice the Exercise Price. Further, if after the Rights
become exercisable, the Company or a majority of its assets or earning power is
acquired by merger, consolidation, transfer, sale or otherwise, each Right will
be converted into the right to purchase that number of shares of common stock of
the surviving entity or (in certain circumstances) its parent corporation,
having a market value of twice the Exercise Price. In general, no Adverse
Person, nor the person or group whose purchase transaction or tender or exchange
offer triggers the exercisability of the Rights, nor any of that person's or
group's transferees, may exercise Rights held by them.
Each Right, at the option of the holder of the Right, also may be
exercised without the payment of cash. In such case, the Right's holder will
receive securities having a value equal to the difference between the value of
the securities that would have been issuable upon payment of the exercise price
and the exercise price.
At any time prior to the tenth day following an event described in (i)
through (v), above, the Board of Directors may redeem all outstanding Rights at
a price of $0.001 per Right, and may amend the Rights Agreement and the Rights
in any and all respects. The Rights will expire at the earliest date of their
redemption or June 20, 2006.
SECTION 203 OF THE DELAWARE LAW
The Company is a Delaware corporation and is subject to Section 203 of
the Delaware General Corporation Law the ("DGCL"). Section 203 of the DGCL
prevents an "interested stockholder" (defined generally as a person owning 15%
or more of a corporation's outstanding voting stock or an affiliate of such
person) from engaging in a "business combination" (as defined) with a Delaware
corporation for three years following the date such person became an interested
stockholder unless (i) before such person became an interested stockholder, the
board of directors of the corporation approved the transaction in which the
interested stockholder became an interested stockholder or approved the business
combination; (ii) upon consummation of the transaction that resulted in the
interested stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of the voting stock of the corporation outstanding
at the time the transaction commenced (excluding stock held by directors who are
also officers of the corporation and employee stock plans that do not provide
employees with the right to determine confidentially whether shares held subject
to the plan will be tendered in a tender or exchange offer); or (iii) following
the transaction in which such person became an interested stockholder, the
business combination is approved by the board of directors of the corporation
and authorized at a meeting of stockholders by vote of the holders of two-thirds
of the outstanding voting stock of the corporation not owned by the interested
stockholder. Under Section 203 of the DGCL, the restrictions described above
also do not apply to certain business combinations proposed by an interested
stockholder following the announcement or notification of one of certain
extraordinary transactions involving the corporation and a person who had not
been an interested stockholder during the previous three years or became an
interested stockholder with the approval of a majority of the corporation's
directors. The
11
<PAGE> 13
provisions of Section 203 of the DGCL requiring a supermajority vote of
disinterested shares to approve certain corporate transactions could enable a
minority of the Company's stockholders to exercise veto power over such
transactions.
TRANSFER AGENT
The Company's transfer agent and registrar for its Common Stock is
Wells Fargo Bank, N.A.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them or may sell the Securities to investors
directly or through agents. Any such underwriter or agent involved in the offer
and sale of Securities will be named in the applicable Prospectus Supplement.
The Company has reserved the right to sell Securities directly to investors on
its own behalf in those jurisdictions where and in such manner as it is
authorized to do so.
Underwriters may offer and sell Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company
also may, from time to time, authorize dealers, acting as the Company's agents,
to offer and sell Securities upon the terms and conditions as are set forth in
the applicable Prospectus Supplement. In connection with the sale of Securities,
underwriters may receive compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Securities for whom they may act as agent. Underwriters may
sell Securities to or through dealers, and such dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities.
No Securities may be sold without delivery of the applicable Prospectus
Supplement describing the method and terms of each offering of any such
Securities.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for
the Company by Barbara S. Polsky, Esq., Senior Vice President, General Counsel
of the Registrant.
EXPERTS
The audited consolidated financial statements of the Company
incorporated in this Prospectus by reference to the Company's Annual Report on
Form 10-K for the year ended June 30, 1996, and the audited supplemental
consolidated financial statements of the Company incorporated in this Prospectus
by reference to the Company's Current Report on Form 8-K/A dated September 16,
1996, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting. The audited financial statements of One Stop Mortgage,
Inc. incorporated in this Prospectus by reference to the Company's Current
Report on Form 8-K dated September 12, 1996, have been so incorporated in
reliance on the report of KPMG Peat Marwick LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
12
<PAGE> 14
NO DEALER, SALESPERSON OR ANY OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, OR ANY PROSPECTUS SUPPLEMENT, AND
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
TABLE OF CONTENTS
Available Information....................................................... 2
Incorporation of Certain Documents by Reference............................. 2
The Company................................................................. 3
Use of Proceeds............................................................. 4
Ratio of Earnings to Fixed Charges.......................................... 4
Description of Debt Securities.............................................. 4
Description of Capital Stock................................................ 10
Plan of Distribution........................................................ 12
Legal Matters............................................................... 12
Experts..................................................................... 12
------------
$300,000,000
AAMES FINANCIAL CORPORATION
DEBT SECURITIES AND COMMON STOCK
------------
PROSPECTUS
------------
13
<PAGE> 15
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering are as follows:
<TABLE>
<CAPTION>
Amount
----------------
<S> <C>
Registration Fee Under Securities Act of 1933............ $ 103,448
NASD Filing Fee.......................................... $ *
Blue Sky Fees and Expenses............................... $ *
Printing and Engraving Certificates...................... $ *
Legal Fees and Expenses.................................. $ 10,000
Accounting Fees and Expense.............................. $ 5,000
Registrar and Transfer Agent Fees........................ $ *
Miscellaneous Expenses................................... $ 1,552
TOTAL........................................... $ 120,000
================
</TABLE>
- -----------------
* Not applicable or none.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has adopted provisions in its Certificate of Incorporation
which limit the liability of directors. As permitted by applicable provisions of
the Delaware General Corporation law (the "Delaware Law"), directors will not be
liable to the Company for monetary damages arising from a breach of their
fiduciary duty as directors in certain circumstances. Such limitation does not
affect liability for any breach of a director's duty to the Company or its
stockholders (i) with respect to approval by the director of any transaction
from which he derives an improper personal benefit, (ii) with respect to acts or
omissions involving an absence of good faith, that he believes to be contrary to
the best interests of the Company or its stockholders, that involve intentional
misconduct or knowing and culpable violation of law, that constitute an
unexcused pattern of inattention that amounts to an abdication of his duty to
the Company or its stockholders, or that show a reckless disregard for his duty
to the Company or its stockholders in circumstances in which he was or should
have been aware, in the ordinary course of performing his duties, of a risk of
serious injury to the Company or its stockholders, or (iii) based on
transactions between the Company and its directors or other corporations with
interrelated directors or on improper distributions, loans or guarantees under
applicable sections of the Delaware Law. Such limitation of liability also does
not affect the availability of equitable remedies such as injunctive relief or
rescission.
The Company's Bylaws provide that the Company must indemnify its
directors and officers to the full extent permitted by the Delaware Law,
including circumstances in which indemnification is otherwise discretionary
under the Delaware Law, and the Company has entered into indemnification
agreements (the "Indemnification Agreements") with its directors providing such
indemnity. The Indemnification Agreements constitute binding agreements between
the Company and each of the other parties thereto, thus preventing the Company
from modifying its indemnification policy in a way that is adverse to any person
who is a party to an Indemnification Agreement.
14
<PAGE> 16
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See the Exhibit Index of this Registration Statement.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to the appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the Trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
15
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Los Angeles, State of California, on September 12, 1996.
AAMES FINANCIAL CORPORATION
(Registrant)
By: /s/ Gary K. Judis
------------------------------
Gary K. Judis
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gary K. Judis and Gregory J. Witherspoon and each
of them, his attorney-in-fact and agent, with full power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary K. Judis Chief Executive Officer, September 12, 1996
- ----------------------------------
Gary K. Judis President, Director
/s/ Cary H. Thompson Chief Operating Officer, Director September 12, 1996
- ----------------------------------
Cary H. Thompson
/s/ Gregory J. Witherspoon Executive Vice President - Finance, September 12, 1996
- ----------------------------------
Gregory J. Witherspoon Chief Financial Officer, Director
/s/ Bobbie J. Burroughs Executive Vice President - Administration, September 12, 1996
- ----------------------------------
Bobbie J. Burroughs Secretary, Director
/s/ Mark E. Elbaum Senior Vice President - Finance, September 12, 1996
- ----------------------------------
Mark E. Elbaum Principal Accounting Officer
/s/ Neil B. Kornswiet Executive Vice President, Director September 12, 1996
- ----------------------------------
Neil B. Kornswiet
/s/ Joseph R. Cerrell Director September 12, 1996
- -----------------------------------
Joseph R. Cerrell
/s/ Dennis F. Holt Director September 12, 1996
- -----------------------------------
Dennis F. Holt
/s/ Melvyn Kinder Director September 12, 1996
- -----------------------------------
Melvyn Kinder
</TABLE>
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
No. Item Page
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1.1 Form of Underwriting Agreement for Debt Securities.(1)
1.2 Form of Underwriting Agreement for Common Stock.(1)
4.3 Form of Specimen Common Stock Certificate.(2)
5.1 Opinion of Barbara S. Polsky, Esq., Senior Vice President, General Counsel of the Registrant
10.1 Form of Trust Indenture Agreement.
12.1 Statement re Computation of Ratio Earnings to Fixed Charges.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Barbara S. Polsky, Esq., Senior Vice President, General Counsel of the Registrant (included
in Exhibit 5.1).
25.0 Statement of Eligibility of Trustee.(1)
27.0 Financial Data Schedule.(2)
</TABLE>
- -----------------------------
1. To be supplied by Amendment.
2. Incorporated by reference from Registrant's Annual Report on Form
10-K for the Year Ended June 30, 1996.
17
<PAGE> 1
EXHIBIT 5.1
September 13, 1996
Aames Financial Corporation
3731 Wilshire Boulevard
Los Angeles, California 90010
Ladies and Gentlemen:
At your request, the undersigned, Barbara S. Polsky, Esq. Senior Vice
President and General Counsel of Aames Financial Corporation, a Delaware
corporation (the "Company"), has examined the Registration Statement on Form S-3
(the "Registration Statement"), to which this letter is attached as Exhibit 5.1,
filed by the Company in order to register under the Securities Act of 1933 (the
"Securities Act"), up to an aggregate of $300,000,000 of (a) the Company's debt
securities, in one or more series (the "Debt Securities") and (b) shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"). The Debt
Securities and Common Stock are referred to herein collectively as the
"Securities."
I have examined the Certificate of Incorporation of the Company, its
Bylaws, the form of Omnibus Indenture attached to the Registration Statement as
Exhibit 10.1 (the "Omnibus Indenture") and such other corporate records,
certificates, documents and matters of law as I have deemed necessary to render
this opinion.
Based on the foregoing and subject to compliance with applicable state
securities and "Blue Sky" laws and the exceptions set forth below, I am of the
opinion that:
1. The issuance and sale by the Company of up to $300,000,000 of
Securities, as provided in the Registration Statement, have been duly and
validly authorized by all necessary corporate action of the Company.
2. When (a) the Omnibus Indenture and supplemental indentures (the
"Indentures") have been qualified under the Trust Indenture Act of 1939, (b) the
Debt Securities have been duly established by the applicable Indentures duly
authenticated by the trustee and duly executed and delivered on behalf of the
Company
<PAGE> 2
Aames Financial Corporation
September 13, 1996
Page 2
against payment therefor in accordance with the terms and provisions of the
applicable Indentures and as contemplated by the Registration Statement, the
prospectus therein contained (the "Prospectus") and the related Prospectus
Supplement(s), (b) when the Registration Statement and any required
post-effective amendment thereto and any and all Prospectus Supplement(s)
required by applicable laws have all become effective under the Securities Act,
(c) assuming that the terms of the Debt Securities and the applicable Indentures
as executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and (d) assuming that the
Debt Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will be constituted valid and legally binding obligations of the
Company, enforceable against the Company in accordance with the terms of the
Debt Securities.
3. When (a) the Registration Statement and any required post-effective
amendment thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act, (b) assuming
that the terms of the Common Stock as issued and sold are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s)
and (c) assuming that the Common Stock is then issued and sold as contemplated
in the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), the Common Stock will be duly authorized, validly issued, fully
paid and nonassessable.
The opinion expressed in paragraph 2 above, relating to whether the
securities described therein will be valid and legally binding obligations of
the Company, are qualified as to:
A. limitations imposed by applicable bankruptcy, insolvency,
reorganization, liquidation, receivership, conservatorship, readjustment of
debt, arrangement, moratorium, fraudulent conveyance or other laws relating to
or affecting the rights of creditors, generally;
B. limitations imposed by general principles of equity, including
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law; and
C. the effect of applicable court decisions holding that provisions of
agreements are unenforceable where the breach thereof imposes restrictions or
burdens on a debtor and it cannot be demonstrated that the enforcement thereof
is necessary for the
<PAGE> 3
Aames Financial Corporation
September 13, 1996
Page 3
protection of the creditor; and the effect of applicable statutes or court
decisions limiting in certain circumstances enforcement of provisions imposing
penalties, forfeitures, late payment charges or increases in interest rates upon
delinquency in payment or default; and the enforceability of any choice of forum
which may be included in the securities, which may be subject to limitation by
certain procedural rules of and statutes applicable to the Federal courts.
I consent to the use of this opinion as an Exhibit to the Registration
Statement and to use of my name in the Prospectus constituting a part thereof.
Respectfully submitted,
/s/ BARBARA S. POLSKY, ESQ.
----------------------------
Barbara S. Polsky, Esq.
Senior Vice President
and General Counsel
Aames Financial Corporation
<PAGE> 1
Exhibit 10.1
AAMES FINANCIAL CORPORATION, as Issuer,
and
[ ], as Trustee
----------------------------------
INDENTURE
Dated as of ______________________, 1996
----------------------------------
<PAGE> 2
TABLE OF CONTENTS */
ARTICLE ONE
<TABLE>
<CAPTION>
Definitions And Other Provisions Of General Application
<S> <C>
SECTION 1.01.Definitions.................................................................. 1
SECTION 1.02.Compliance Certificates and Opinions......................................... 8
SECTION 1.03.Form of Documents Delivered to Trustee....................................... 9
SECTION 1.04.Acts of Holders.............................................................. 9
SECTION 1.05.Notices, etc., to Trustee and Company....................................... 11
SECTION 1.06.Notices to Holders; Waiver.................................................. 12
SECTION 1.07.Language of Notices, etc.................................................... 13
SECTION 1.08.Conflict with Trust Indenture Act........................................... 13
SECTION 1.09.Effect of Headings and Table of Contents.................................... 13
SECTION 1.10.Successors and Assigns...................................................... 13
SECTION 1.11.Separability Clause......................................................... 13
SECTION 1.12.Benefits of Indenture....................................................... 13
SECTION 1.13.Legal Holidays.............................................................. 13
SECTION 1.14.Governing Law; Choice of Forum.............................................. 14
ARTICLE TWO
Security Forms
SECTION 2.01.Forms Generally............................................................. 15
SECTION 2.02.Form of Securities.......................................................... 15
</TABLE>
- ---------------
*/ This Table of Contents is not part of the Indenture.
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 2.03.Form of Trustee's Certificate of Authentication............................. 16
SECTION 2.04.Global Securities........................................................... 16
ARTICLE THREE
The Securities
SECTION 3.01.Title and Terms............................................................. 16
SECTION 3.02.Denominations............................................................... 18
SECTION 3.03.Execution, Authentication, Delivery and Dating.............................. 18
SECTION 3.04.Temporary Securities........................................................ 21
SECTION 3.05.Registration, Registration of Transfer and Exchange......................... 23
SECTION 3.06.Mutilated, Destroyed, Lost and Stolen Securities............................ 25
SECTION 3.07.Payment of Interest; Interest Rights Preserved.............................. 26
SECTION 3.08.Persons Deemed Owners....................................................... 28
SECTION 3.09.Cancellation................................................................ 29
SECTION 3.10.Computation of Interest..................................................... 29
SECTION 3.11.Form of Certification....................................................... 29
ARTICLE FOUR
Redemption Of Securities
SECTION 4.01.Applicability of Article.................................................... 30
SECTION 4.02.Election To Redeem; Notice to Trustee....................................... 30
SECTION 4.03.Selection by Security Registrar of Securities To Be Redeemed................ 30
SECTION 4.04.Notice of Redemption........................................................ 31
SECTION 4.05.Deposit of Redemption Price................................................. 31
SECTION 4.06.Securities Payable on Redemption Date....................................... 32
SECTION 4.07.Securities Redeemed in Part................................................. 32
</TABLE>
ii
<PAGE> 4
ARTICLE FIVE
Covenants
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 5.01.Payment of Principal, Premium and Interest.................................. 33
SECTION 5.02.Maintenance of Office or Agency............................................. 33
SECTION 5.03.Money for Security Payments To Be Held in Trust............................. 34
SECTION 5.04.Additional Amounts.......................................................... 36
SECTION 5.05.Statement as to Compliance.................................................. 36
SECTION 5.06.Maintenance of Corporate Existence, Rights and Franchises................... 37
ARTICLE SIX
Holders' Lists And Reports By Trustee And Company
SECTION 6.01.Company To Furnish Trustee Names and Addresses of Holders................... 37
SECTION 6.02.Preservation of Information; Communications to Holders...................... 37
SECTION 6.03.Reports by Trustee.......................................................... 39
SECTION 6.04.Reports by Company.......................................................... 39
ARTICLE SEVEN
Remedies
SECTION 7.01.Events of Default........................................................... 40
SECTION 7.02.Acceleration of Maturity; Rescission and Annulment.......................... 41
SECTION 7.03.Collection of Indebtedness and Suits for Enforcement by Trustee............. 42
SECTION 7.04.Trustee May File Proofs of Claim............................................ 43
SECTION 7.05.Trustee May Enforce Claims Without Possession of Securities................. 43
SECTION 7.06.Application of Money Collected.............................................. 44
SECTION 7.07.Limitation on Suits......................................................... 44
SECTION 7.08.Unconditional Right of Holders To Receive Principal, Premium and Interest... 45
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 7.09.Restoration of Rights and Remedies.......................................... 45
SECTION 7.10.Rights and Remedies Cumulative.............................................. 45
SECTION 7.11.Delay or Omission Not Waiver................................................ 45
SECTION 7.12.Control by Holders.......................................................... 45
SECTION 7.13.Waiver of Past Defaults..................................................... 46
SECTION 7.14.Undertaking for Costs....................................................... 46
SECTION 7.15.Waiver of Stay or Extension Laws............................................ 47
ARTICLE EIGHT
The Trustee
SECTION 8.01.Certain Duties and Responsibilities......................................... 47
SECTION 8.02.Notice of Default........................................................... 48
SECTION 8.03.Certain Rights of Trustee................................................... 48
SECTION 8.04.Not Responsible for Recitals or Issuance of Securities...................... 50
SECTION 8.05.May Hold Securities......................................................... 50
SECTION 8.07.Compensation and Reimbursement.............................................. 50
SECTION 8.08.Disqualification; Conflicting Interests..................................... 51
SECTION 8.09.Corporate Trustee Required; Eligibility..................................... 51
SECTION 8.10.Resignation and Removal; Appointment of Successor........................... 51
SECTION 8.11.Acceptance of Appointment by Successor...................................... 53
SECTION 8.12.Merger, Conversion, Consolidation or Succession to Business of Trustee...... 54
SECTION 8.13.Preferential Collection of Claims Against Company........................... 54
SECTION 8.14.Appointment of Authenticating Agents........................................ 54
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE NINE
Supplemental Indentures
SECTION 9.01.Supplemental Indentures Without Consent of Holders.......................... 56
SECTION 9.02.Supplemental Indentures with Consent of Holders............................. 57
SECTION 9.03.Execution of Supplemental Indentures........................................ 58
SECTION 9.04.Effect of Supplemental Indentures........................................... 58
SECTION 9.05.Conformity with Trust Indenture Act......................................... 58
SECTION 9.06.Reference in Securities to Supplemental Indentures.......................... 59
ARTICLE TEN
Consolidation, Merger, Conveyance Or Transfer
SECTION 10.01.Company May Consolidate, etc., Only on Certain Terms....................... 59
SECTION 10.02.Successor Corporation Substituted.......................................... 59
ARTICLE ELEVEN
Satisfaction And Discharge
SECTION 11.01.Satisfaction and Discharge of Indenture.................................... 60
SECTION 11.02.Application of Trust Money................................................. 61
SECTION 11.03.Reinstatement.............................................................. 61
ARTICLE TWELVE
Immunity Of Incorporators, Stockholders, Officers And Directors
SECTION 12.01.Exemption from Individual Liability........................................ 61
ARTICLE THIRTEEN
Book-Entry Provisions For Global Securities
SECTION 13.01.Applicability of Article................................................... 62
SECTION 13.02.Book-Entry Provisions For Global Securities................................ 62
</TABLE>
v
<PAGE> 7
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE FOURTEEN
Guarantee
SECTION 14.01.Applicability of Article................................................... 64
SECTION 14.02.Guarantee.................................................................. 64
SECTION 14.03.Nature of Guarantee........................................................ 65
SECTION 14.04.Authorization.............................................................. 65
SECTION 14.05.Certain Waivers............................................................ 66
SECTION 14.06.No Subrogation; Certain Agreements......................................... 67
SECTION 14.07.Bankruptcy No Discharge.................................................... 67
SECTION 14.08.Severability of Void Obligations under Guarantee........................... 68
SECTION 14.09.Right of Contribution...................................................... 68
ARTICLE FIFTEEN
Repayment At The Option Of Holders
SECTION 15.01.Applicability of Article................................................... 69
SECTION 15.02.Repayment of Securities.................................................... 69
SECTION 15.03.Exercise of Option, Notice................................................. 69
SECTION 15.04.Election of Repayment by Remarketing Entities.............................. 70
SECTION 15.05.Securities Payable on the Repayment Date................................... 70
ARTICLE SIXTEEN
Meetings Of Holders Of Securities
SECTION 16.01.Purposes for Which Meetings May Be Called.................................. 71
SECTION 16.02.Call, Notice and Place of Meetings......................................... 71
SECTION 16.03.Persons Entitled To Vote at Meetings....................................... 71
SECTION 16.04.Quorum; Action............................................................. 71
</TABLE>
vi
<PAGE> 8
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 16.05.Determination of Voting Rights; Conduct and Adjournment of Meetings........ 72
SECTION 16.06.Counting Votes and Recording Action of Meetings............................ 73
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01.Counterparts............................................................... 74
EXHIBIT A FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER
SECURITY CERTIFICATE........................................................... 74
EXHIBIT B FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL BEARER
SECURITY CERTIFICATE........................................................... 76
EXHIBIT C FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. TO OBTAIN
INTEREST PRIOR TO A GLOBAL EXCHANGE DATE CERTIFICATE........................... 77
EXHIBIT D FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO OBTAIN INTEREST
PRIOR TO A GLOBAL EXCHANGE DATE CERTIFICATE.................................... 79
</TABLE>
vii
<PAGE> 9
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN
PROVISIONS OF TRUST INDENTURE ACT OF 1939*/
TIA Section Reflected in Indenture Section
310(a)(1)............................. 8.09
(a)(2)............................. 8.09
(a)(3)............................. Not Applicable
(a)(4)............................. Not Applicable
(a)(5)............................. 8.09
(b)................................ 8.08
8.10
(c)................................ Not Applicable
311(a)................................ 8.13
(b)................................ 8.13
312(a)................................ 6.01
6.02(i)
(b)................................ 6.02(ii)
(c)................................ 6.02(iii)
313(a)................................ 6.03(i)
(b)................................ 6.03(ii)
(c)................................ 6.03(i),(ii) and (iii)
(d)................................ 6.03(iii)
314(a)................................ 6.04
5.05
(b)................................ Not Applicable
(c)(1)............................. 1.02
(c)(2)............................. 1.02
(c)(3)............................. Not Applicable
(d)................................ Not Applicable
(e)................................ 1.02
(f)................................. Not Applicable
315(a)................................ 8.01(i)
8.01(iii)
(b)................................ 8.02
(c)................................ 8.01(ii)
(d)................................ 8.01
(d)(1)............................. 8.01(i)
(d)(2)............................. 8.01(iii)(b)
-------------------
*/ This Table is not part of the Indenture.
viii
<PAGE> 10
TIA Section Reflected in Indenture Section
(d)(3)............................. 8.01(iii)(c)
(e)................................ 7.14
316(a)................................ 1.01
316(a)(1)(A).......................... 7.02
7.12
(a)(1)(B).......................... 7.13
(a)(2)............................. Not Applicable
(b)................................ 7.08
(c)................................ 1.04(viii)
317(a)(1)............................. 7.03
(a)(2)............................. 7.04
(b)................................ 5.03
318(a)................................ 1.08
(c)................................ 1.08
ix
<PAGE> 11
THIS INDENTURE is entered into as of _________________, 1996, between
AAMES FINANCIAL CORPORATION, a Delaware corporation (the "Company"), and
____________________, a _________________ corporation (the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
debentures, notes, bonds and other evidences of indebtedness to be issued in one
or more series (hereinafter called the "Securities") as hereinafter set forth,
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this 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 3.01;
(ii) all references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Indenture. 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;
(iii) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(iv) 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; and
1
<PAGE> 12
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as may be otherwise expressly
provided herein or in one or more indentures supplemental hereto, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"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 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; provided that a
Person shall be deemed to have such power with respect to the Company if such
Person is the beneficial owner of Capital Stock representing 5% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the Company
or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable). The terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Members" has the meaning specified in Section 13.02.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.), as amended from time to time, or any successor statute.
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in global bearer form.
"Beneficiary" has the meaning specified in Section 14.02.
"Board of Directors" means either the board of directors of the Company
or, except for purposes of Sections 2.02 and 3.01, any duly authorized committee
of that board.
2
<PAGE> 13
"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" means any day other than a Saturday or Sunday which is
not a legal holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme, or its
successors.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, or if any time after the execution and delivery of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have been appointed pursuant to Section 3.05, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, 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 the coin or currency of the United States of
America as at the time of payment which is legal tender for the payment of
public and private debts.
3
<PAGE> 14
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System or its successor.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"fair valuation" and "fair salable value" have the meanings specified
in Section 14.09.
"Funding Guarantor" has the meaning specified in Section 14.09.
"Global Exchange Date" has the meaning specified in Section
3.04(b)(iv).
"Global Security" means a Security, including a Temporary Global Bearer
Security, issued to evidence all of a part of a series of Securities.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a corresponding meaning.
"Guaranteed Securities" has the meaning specified in Section 14.02.
"Guarantor" or "Guarantors" means any Person or Persons, as applicable,
if any, who may Guarantee an obligation or indebtedness of the Company pursuant
to the terms of this Indenture. The use of the term "Guarantor" or "Guarantors"
shall only have an operative effect with respect to this Indenture to the extent
that there is a Guarantor or Guarantors pursuant to the terms of this Indenture.
"Holder" with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any Temporary Global Bearer Security) or a
coupon, means the bearer thereof.
"Interest" when used with respect to a Global Security, has the meaning
specified in Section 13.02.
"Interest Payment Date," when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
4
<PAGE> 15
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security (or any 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.
"Maximum Net Worth" has the meaning specified in Section 14.09.
"Net Worth" has the meaning specified in Section 14.09.
"Obligations" has the meaning specified in Section 14.02.
"Obligor" means the Company or any Guarantor.
"Obligor Guarantee" has the meaning specified in Section 14.02.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice Chairman of the Board, or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall contain the statements set
forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Outstanding," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have
been authenticated and delivered pursuant to Section 3.06 of this
Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of
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Securities, Securities owned by the Company or any other Obligor upon the
Securities or any Affiliate of the Company or such other Obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be
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 such other Obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto 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 or any other entity.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series (including Redemption Price) are payable as specified in accordance
with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"principal" means, with respect to any Security of any series, any
principal, Redemption Price or Repayment Price.
"Principal Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is at [address of Trustee].
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
"Process Agent" has the meaning specified in Section 1.14.
"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 specified in such Security at which it is to be
redeemed pursuant to this Indenture.
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"Registered Security" means any Security in registered form established
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remaining Guarantor" has the meaning specified in Section 14.09.
"Remarketing Entity," when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date," when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price," when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any subsidiary that has been designated
as a Restricted Subsidiary pursuant to Section 3.01.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities," with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" means, when used with respect to any Security, or any
installment of principal thereof or interest thereon, 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, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock
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or other interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of
such Person or (ii) one or more Subsidiaries of such Person.
"Temporary Global Bearer Securities" has the meaning specified in
Section 3.04.
"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" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed and, to the extent required by law, as
thereafter amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant to
this Indenture, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"vice president," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee, if
the Trustee so requests, an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
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(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) 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
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen, or a combination of such instruments and any such
record.
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Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 16.06.
(ii) 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 the certificate of any 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 or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. 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.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by 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 any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
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(vii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(viii) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(ix) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 3.01 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(x) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. 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:
(i) 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 Principal Corporate
Trust Office; or
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(ii) the Company or any Guarantor by any Holder or by the
Trustee shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid, to the Company or any Guarantor, to the
attention of [ ], 3731 Wilshire Boulevard, 10th Floor, Los Angeles,
California 90010 or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and
mailed, first class, postage prepaid, to each Holder of Registered
Securities 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.
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and, if the Securities of such series are then listed on
The International Stock Exchange of the United Kingdom and the Republic
of Ireland Limited and such stock exchange shall so require, in London
and, if the Securities of such series are then listed on the Luxembourg
Stock Exchange and such stock exchange shall so require, in Luxembourg
and, if the Securities of such series are then listed on any other
stock exchange and such stock exchange shall so require, in any other
required city outside the United States, or, if not practicable,
elsewhere in Europe on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of Registered
Securities shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice by publication
to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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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.
SECTION 1.07. Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. 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 1.10. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
Indenture 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 1.12. 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 1.13. Legal Holidays. In any case where any Interest Payment
Date, Stated Maturity, Repayment Date or Redemption Date of any Security or any
date on which any Defaulted Interest is proposed to be paid shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provisions
of the Securities or this Indenture) payment of the principal of, premium, if
any, or interest on any Securities need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date, Stated Maturity,
Repayment Date or Redemption Date or on the date on which Defaulted Interest is
proposed to be paid, and, if such payment is made, no interest shall accrue on
such payment for the period from and after any such Interest Payment Date,
Stated Maturity, Repayment Date or Redemption Date, or date on which Defaulted
Interest is proposed to be paid, as the case may be.
SECTION 1.14. Governing Law; Choice of Forum. (a) This Indenture and
the Securities shall be construed in accordance with and governed by the laws
(other than the conflict
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of laws rules except those set forth in New York General Obligations Law Section
5-1301) of the State of New York.
(b) EACH OBLIGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. EACH OBLIGOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) To the extent to which a process agent to receive for and on behalf
of each Obligor service of process in the County of New York relating to this
Indenture and the Securities (a "Process Agent") shall be appointed pursuant to
this Indenture, SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING AGAINST ANY
OBLIGOR MAY BE MADE ON SUCH PROCESS AGENT BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER
APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK, AND SUCH PROCESS AGENT SHALL
BE AUTHORIZED AND DIRECTED TO ACCEPT SUCH SERVICE FOR AND ON BEHALF OF SUCH
OBLIGOR AND TO ADMIT SERVICE WITH RESPECT THERETO. SUCH SERVICE UPON SUCH
PROCESS AGENT SHALL BE DEEMED EFFECTIVE PERSONAL SERVICE ON SUCH OBLIGOR,
SUFFICIENT FOR PERSONAL JURISDICTION, 10 DAYS AFTER MAILING, AND SHALL BE LEGAL
AND BINDING UPON SUCH OBLIGOR FOR ALL PURPOSES, NOTWITHSTANDING ANY FAILURE OF
SUCH PROCESS AGENT TO MAIL COPIES OF SUCH LEGAL PROCESS TO SUCH OBLIGOR OR ANY
FAILURE ON THE PART OF SUCH OBLIGOR TO RECEIVE THE SAME. Such Process Agent
shall be deemed to have been instructed to mail to such Obligor, upon service of
process being made on such Process Agent pursuant to this Section, a copy of the
summons and complaint or other legal process served upon it, by registered mail,
return receipt requested, at such Obligor's address set forth in this Indenture
or any supplement hereto, or to such other address as such Obligor may notify
such Process Agent in writing. Each Obligor shall at all times maintain a
Process Agent to receive service of process in the County of New York on its
behalf with respect to this Indenture and the Securities. If for any reason a
Process Agent or any successor thereto shall no longer serve as Process Agent or
shall have changed its address without notification thereof to the Trustee, such
Obligor, immediately after gaining knowledge thereof, irrevocably shall appoint
a substitute Process Agent acceptable to the Trustee in the County of New York
and advise the Trustee thereof.
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ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally. All Securities and any related coupons
shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification 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 or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
Definitive Securities, if any, and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in
one of the forms approved from time to time by or pursuant to a Board
Resolution. Upon or prior to the delivery of a Security or coupons in any such
form to the Trustee for authentication, the Company shall deliver to the Trustee
the following:
(i) the Board Resolution by or pursuant to which such form of
Security or coupons has been approved, certified by the Secretary or an
Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of
this Indenture;
(iii) the Company Order required by Section 3.03 of this
Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established
as provided in this Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
as Trustee,
by: _________________________________
Authorized Signatory
SECTION 2.04. Global Securities. If Securities of a series are issuable
in whole or in part in global form, as contemplated by Section 3.01 and/or
Article Thirteen, then, notwithstanding clause (xii) of the second paragraph of
Section 3.01 and the provisions of Section 3.02, such Global Security shall
represent such of the outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges or increased to reflect the issuance of
additional uncertificated securities of such series. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
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(ii) any limit upon the aggregate principal amount or
aggregate initial public offering price 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
that series pursuant to this Article Three or Sections 4.07, 9.06 or
15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a
percentage of the aggregate principal amount thereof) at which the
Securities will be issued;
(v) the date or dates on which the principal and premium, if
any, of the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods by which such
rates may be determined, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the Regular Record Date for the interest
payable on any Interest Payment Date and the basis upon which interest
shall be calculated if other than that of a 360-day year consisting of
twelve 30-day months;
(vii) the extent to which any of the Securities will be
issuable in temporary or permanent global form, and in such case, the
Depositary for such Global Security or Securities, the terms and
conditions, if any, upon which such Global Security may be exchanged in
whole or in part for definitive securities, and the manner in which any
interest payable on a temporary or permanent Global Security will be
paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to
Section 5.02, the Securities may be presented for registration of
transfer or exchange;
(ix) the place or places where, subject to the provisions of
Section 5.02, the principal of (and premium, if any) and interest, if
any, on Securities of the series shall be payable;
(x) 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 purchased or redeemed, in whole or in part, at the option of the
Company;
(xi) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Registered Securities of
the series shall be issuable; and, if other than $5,000 or any integral
multiple thereof, the denominations in which Bearer Securities of the
series shall be issuable;
(xii) if the amount of payments of principal of (and premium,
if any) or any interest on Securities of the series may be determined
with reference to an index, the method or methods by which such amounts
shall be determined;
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(xiii) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of
the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer
Securities shall be dated if other than the date of original issuance
of the first Security of such series of like tenor and term to be
issued;
(xiv) whether, and under what conditions, additional amounts
will be payable to Holders of Securities of the series pursuant to
Section 5.04;
(xv) information with respect to book-entry procedures, if
any;
(xvi) any addition to or change in the Events of Default or
covenants of the Company and its Restricted Subsidiaries pertaining to
the Securities of the series;
(xvii) whether any Subsidiary of the Company shall be
designated a Restricted Subsidiary; and
(xviii) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided, in such Officers' Certificate or in any such
indenture supplemental hereto. Securities of any particular series may be issued
at various times, with different dates on which the principal or any installment
of principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption Dates or
Repayment Dates.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the Securities
of any series, the Registered Securities of each series shall be issuable only
as Securities without coupons in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of each series, if any, shall be
issuable with coupons and in denominations of $5,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents and by its Secretary or one of its Assistant Secretaries. The
signatures of any or all of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Company's Chairman
of the Board, its President, a Vice Chairman of the Board, one of its Vice
Presidents or the Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, 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 shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a Temporary Global Bearer Security
delivered pursuant to Section 3.04, a Certificate in the form required by
Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the
manner of determining such terms, have been established in conformity
with the provisions of this Indenture;
(iii) that such Securities and coupons, 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, fraudulent transfer, moratorium and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
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Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided 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 or other certificates delivered pursuant to
Sections 1.02 and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon telephonic, electronic or written order of Persons designated in such
Company Order, Officers' Certificate, supplemental indenture or Board Resolution
and that such Persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any Global Security shall be dated as of the date of original
issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for 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. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of
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the certifications and opinions required under Sections 3.01 and 3.03, the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, 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. In the case of any series which may be issuable as Bearer
Securities, such temporary Securities may be in global form, representing such
of the Outstanding Securities of such series as shall be specified therein (in
such form, "Temporary Global Bearer Securities").
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of Temporary Global Bearer Securities,
each of which shall be exchanged in accordance with the provisions of
the following paragraphs, 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, 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 (accompanied, if applicable, by all unmatured
coupons and all matured coupons in default appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
(ii) If temporary Securities of any series are issued as
Temporary Global Bearer Securities, any such Temporary Global Bearer
Security shall be issued in accordance with Article Thirteen and shall,
unless otherwise provided in such Temporary Global Bearer Security, be
delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of the operator of Euroclear
and CEDEL S.A., for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may
direct). Upon receipt of written instructions (which need not comply
with Section 1.02) signed on behalf of the Company by any Person
authorized to give such instructions, the Trustee or any Authenticating
Agent shall endorse such Temporary Global Bearer Security to reflect
the initial principal amount, or an increase in the principal amount,
of Outstanding Securities represented thereby. Until such initial
endorsement, such Temporary Global Bearer Security shall not evidence
any obligation of the Company. Such Temporary Global Bearer Security
shall at any time represent the aggregate principal amount of
Outstanding Securities theretofore
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endorsed thereon as provided above, subject to reduction to reflect
exchanges as described below.
(iii) Unless otherwise specified in such Temporary Global
Bearer Security, and subject to the second proviso in the following
paragraph, the interest of a beneficial owner of Securities of a series
in a Temporary Global Bearer Security shall be exchanged for definitive
Securities (including a definitive Temporary Global Bearer Security) of
such series and of like tenor following the Global Exchange Date when
the account holder instructs Euroclear or CEDEL S.A., as the case may
be, to request such exchange on his behalf and delivers to Euroclear or
CEDEL S.A., as the case may be, a certificate in the form required by
Section 3.11(i), dated no earlier than 15 days prior to the Global
Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL S.A., the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying Agent.
Unless otherwise specified in such Temporary Global Bearer Security,
any such exchange shall be made free of charge to the beneficial owners
of such Temporary Global Bearer Security, except that a Person
receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like in the event that such Person does
not take delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL S.A. Definitive Securities in bearer form
to be delivered in exchange for any portion of a Temporary Global
Bearer Security shall be delivered only outside the United States.
(iv) Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of, any such
Temporary Global Bearer Security as the "Global Exchange Date" (the
"Global Exchange Date"), the Company shall deliver to the Trustee, or,
if the Trustee appoints an Authenticating Agent pursuant to Section
8.14, to any such Authenticating Agent, definitive Securities in
aggregate principal amount equal to the principal amount of such
Temporary Global Bearer Security, executed by the Company. Unless
otherwise specified as contemplated by Section 3.01, such definitive
Securities shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as may be specified by the
Company, the Trustee or any such Authenticating Agent, as may be
appropriate. On or after the Global Exchange Date, such Global Security
shall be surrendered by the Common Depositary to the Trustee or any
such Authenticating Agent, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee or any such Authenticating
Agent shall authenticate and deliver, in exchange for each portion of
such Temporary Global Bearer Security, an equal aggregate principal
amount of definitive Securities of the same series, of authorized
denominations and of like tenor as the portion of such Temporary Global
Bearer Security to be exchanged, which, except as otherwise specified
as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof;
provided, however, that, unless otherwise specified in such Temporary
Global Bearer Security, upon such presentation by the Common
Depositary, such Temporary Global Bearer Security is accompanied by a
certificate dated the Global Exchange Date or a
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subsequent date and signed by Euroclear as to the portion of such
Temporary Global Bearer Security held for its account then to be
exchanged and a certificate dated the Global Exchange Date or a
subsequent date and signed by CEDEL S.A., as to the portion of such
Temporary Global Bearer Security held for its account then to be
exchanged, each in the form required by Section 3.11(ii); and provided
further that a definitive Bearer Security (including a definitive
Temporary Global Bearer Security) shall be delivered in exchange for a
portion of a Temporary Global Bearer Security only in compliance with
the conditions set forth in Section 3.03.
(v) Upon any exchange of a portion of any such Temporary
Global Bearer Security, such Temporary Global Bearer Security shall be
endorsed by the Trustee or any such Authenticating Agent, as the case
may be, to reflect the reduction of the principal amount evidenced
thereby, whereupon its remaining principal amount shall be reduced for
all purposes by the amount so exchanged. Until so exchanged in full,
such Temporary Global Bearer Security shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 3.01, interest payable
on such Temporary Global Bearer Security on an Interest Payment Date
for Securities of such series occurring prior to the applicable Global
Exchange Date shall be payable, without interest, to Euroclear and
CEDEL S.A. on or after such Interest Payment Date upon delivery by
Euroclear and CEDEL S.A. to the Trustee or the Paying Agent, as the
case may be, of a certificate or certificates in the form required by
Section 3.11(iii), for credit on or after such Interest Payment Date to
the respective accounts of the Persons who are the beneficial owners of
such Temporary Global Bearer Security on such Interest Payment Date and
who have each delivered to Euroclear or CEDEL S.A., as the case may be,
a certificate in the form required by Section 3.11(iv). Any interest so
received by Euroclear and CEDEL S.A. and not paid as herein provided
prior to the Global Exchange Date shall be returned to the Trustee or
Paying Agent, as the case may be, which, upon expiration of two years
after such Interest Payment Date, shall repay such interest to the
Company on Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With
respect to Registered Securities, the Company shall keep or cause to be kept a
register (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 Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar," and
may appoint any "Co-Security Registrar" as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have The City of New York as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in The City of New
York.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 5.02 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered
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Securities of such series of any authorized denominations and of a like
aggregate principal amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
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.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of any such payment from the
Company; provided, however, that interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency of a Paying Agent, maintained pursuant to Section 5.02 for such purpose,
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
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
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a
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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.
Unless otherwise provided in the Securities to be registered for
transfer or exchanged, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) 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
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Securities or
portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i)
any mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar 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
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto;
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provided, however, that any new Bearer Security will be delivered only in
compliance with the conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
however, that payment of principal of (and premium, if any) and any interest on
Bearer Securities shall be payable only at an office or agency located outside
the United States, and, in the ease of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in exchange for any mutilated security or in lieu of
any destroyed, lost or stolen Security, or in exchange for a Security with a
mutilated, destroyed, lost or stolen coupon, shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 3.01, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall unless otherwise provided in such Security 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. Unless otherwise specified as contemplated by Section 3.01,
in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture. At the option of
the Company, payment of interest on any Registered Security may be made by check
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
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Any interest on any Registered Security 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 his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted
Interest to the Persons in whose names any such Registered Securities
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit 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 nor 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 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 mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered on such Special Record Date and
shall no longer be payable pursuant to the following clause.
(ii) In case a Bearer Security of any series is surrendered at
the office or agency in a Place of Payment for such series in exchange
for a Registered Security of such series after the close of business at
such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date of
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for
payment and Defaulted Interest will not be payable on such proposed
date for payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(iii) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities with respect to which
there exists such default may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such payment
shall be deemed practicable by the Trustee.
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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.
Subject to the limitations set forth in Section 5.02, the Holder of any coupon
appertaining to a Bearer Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or
after the Interest Payment Date of such coupon at an office or agency maintained
for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any
coupons appertaining thereto and any Temporary Global Bearer Security or
permanent Global Security in bearer form shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, 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, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a
series of Securities, all Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly canceled 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 canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All canceled Securities or coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company.
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SECTION 3.10. Computation of Interest. Interest on the Securities of
each series shall be computed as shall be specified as contemplated by Section
3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant
to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled
to receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes
as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with the exchange of a portion of a Temporary
Global Bearer Security, such certification shall be provided
substantially in the form of Exhibit B hereto, with only such changes
as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with payment of interest with respect to a
Temporary Global Bearer Security prior to the related Global Exchange
Date, such certification shall be provided substantially in the form of
Exhibit C hereto, with only such changes as shall be approved by the
Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial
owner of a portion of a Temporary Global Bearer Security in connection
with payment of interest with respect to a Temporary Global Bearer
Security prior to the related Global Exchange Date, such certification
shall be provided substantially in the form of Exhibit D hereto, with
only such changes as shall be approved by the Company.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. 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
3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of
the Company to redeem any Securities redeemable at the option of the Company
shall be evidenced by an Officers' Certificate. 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 45 days (unless a shorter notice shall be satisfactory
to the Trustee) but not more than 60 days prior to the Redemption Date fixed by
the Company notify the Trustee and the Security Registrar of such Redemption
Date and of the
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principal amount of Securities of such series to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 4.03. Selection by Security Registrar of Securities To Be
Redeemed. If less than all the Securities of any series with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
less than 30 nor more than 60 days prior to the Redemption Date by the Security
Registrar from the Outstanding Securities of such series having such terms not
previously called for redemption, by such method as the Security Registrar shall
deem fair and appropriate and which may provide for the selection for redemption
of portions of the principal amount of Securities of such series of a
denomination equal to or larger than the minimum authorized denomination for
Securities of such series. Unless otherwise provided by the terms of the
Securities of any series so selected for partial redemption, the portions of the
principal of Securities of such series so selected for partial redemption shall
be, in the case of Registered Securities, equal to $1,000 or an integral
multiple thereof or, in the case of Bearer Securities, equal to $5,000 or an
integral multiple thereof, and the principal amount of any such Security which
remains outstanding shall not be less than the minimum authorized denomination
for Securities of such series.
The Security Registrar shall promptly notify the Company, the Trustee
and the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security 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 Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 1.06, not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series
having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of
the particular Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed, and that
interest, if any, thereon shall cease to accrue on and after said date;
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(v) the place or places where such Securities (other than the
Global Securities), together in the case of Bearer Securities with all
remaining coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption
Price; and
(vi) the CUSIP number or the Euroclear or the CEDEL reference
numbers (or any other number used by a Depositary to identify such
Securities), if any, of the Securities to be redeemed. A notice of
redemption published as contemplated by Section 1.06 need not identify
particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the opening
of business on any Redemption Date, the Company shall deposit or cause to be
deposited 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
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which
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a deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security (other than a
Global Security) which is to be redeemed only in part shall be surrendered at
the office or agency of the Company in a Place of Payment therefor (with, if the
Company or the Security Registrar so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder of such Security 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 and Stated Maturity, containing
identical terms and conditions, of any authorized denominations 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. The records
of the Security Registrar and the Depositary shall reflect any partial
redemption of any Global Security.
ARTICLE FIVE
COVENANTS
SECTION 5.01. 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, premium, if any, and interest on the
Securities of such series in accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only outside the United States upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a
series are issuable as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. Whether Securities of a series may be
issuable as Registered Securities or Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where
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any Securities of that series may be presented or surrendered for payment, where
any Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served, (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts payable on Bearer
Securities of that series pursuant to Section 5.04) at the place specified for
the purpose as contemplated by Section 3.01, and the Company hereby appoints the
Trustee as its agent to receive such respective presentations, surrenders,
notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
and interest (including additional amounts payable in respect thereof) on any
Bearer Security may be made at an office or agency of, and designated by, the
Company located in the United States if (but only if) payment of the full amount
of such principal, premium, interest or additional amounts in Dollars at all
offices outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or similar restrictions and the Trustee receives an Opinion of Counsel
that such payment within the United States is legal. Unless otherwise provided
as contemplated by Section 3.01 with respect to any series of Securities, at the
option of the Holder of any Bearer Security or related coupon, payment may be
made by check pursuant to the terms of such Bearer Security presented or mailed
to an address outside the United States or by transfer to an account maintained
by the payee with a bank located outside the United States.
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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 of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment 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 and until the Company
rescinds one or more such appointments, the Company hereby appoints: (i) the
Trustee, as its Paying Agent in The City of New York with respect to all series
of Securities having a Place of Payment in The City of New York and (ii) the
[______] at its principal office as its Paying Agent in the [____________] with
respect to all series of Securities having a Place of Payment in the
[____________].
SECTION 5.03. Money for Security Payments To Be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium 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, at or prior to the opening of business on each
due date of the principal of, premium, if any, or interest on any Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal, premium 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 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:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any
appurtenant coupons 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;
(ii) give the Trustee notice of any default by the Company (or
any other Obligor upon the Securities of such series) in the making of
any payment of principal, premium or interest on the Securities of such
series or any appurtenant coupons; and
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(iii) 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 payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium 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 or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, 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 5.04. Additional Amounts. If the Securities of a series provide
for the payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below- mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment
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of principal of (and premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or reasonable
expense incurred without negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officers' Certificate (provided, however, that one of the signatories of
which shall be the Company's principal executive officer, principal financial
officer or principal accounting officer) stating, as to each signer thereof,
that:
(i) a review of the activities of the Company during such year
and of performance under this Indenture and under the terms of the
Securities has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations and complied with all
conditions and covenants under this Indenture and under the terms of
the Securities throughout such year, or, if there has been a default in
the fulfillment of any such obligation, condition or covenant
specifying each such default known to him and the nature and status
thereof, and (b) no event has occurred and is occurring 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
such event known to him and the nature and status thereof.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
Franchises. So long as any of the Securities shall be Outstanding, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its and each of its Restricted Subsidiaries' corporate
existence, rights and franchises to carry on its business; provided, however,
that nothing in this Section 5.06 shall (i) require the Company to preserve any
such right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company or such Restricted Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Holders, (ii) prevent any
consolidation or merger of the Company or any Restricted Subsidiary, or any
conveyance or transfer of all or substantially all of the property and assets of
any of its divisions or lines of business to any person, permitted by Article
Ten, or (iii) the liquidation or dissolution of the Company or any Restricted
Subsidiary after any conveyance or transfer of the all or substantially all of
the property and assets of any of its divisions or lines of business to any
person permitted by Article Ten.
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ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company To Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, and (ii) 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 requested to be furnished; provided, however, that if and so
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(a) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 6.02(i), or
(b) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 6.02(i), and as to
the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request
of such applicants, mail to each Holder of a Security of such series or
all Holders of Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by the
Trustee in accordance
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with Section 6.02(i), a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement
to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such
series or all Securities, as the case may be, or would be in violation
of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter
an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order
so declaring, the Trustee shall mail copies of such material to all
such Holders of Securities with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants
respecting their application.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), 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 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 1 of
each year commencing with the year 1997, the Trustee shall mail to each Holder
reports concerning the Trustee and its action under the Indenture as may be
required pursuant to the Trust Indenture Act if and to the extent and in the
manner provided pursuant thereto.
(ii) Reports pursuant to this Section shall be transmitted by mail (1)
to all Holders of Registered Securities, as their names and addresses appear in
the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and, if required by law, rule or
regulation, also with the Commission. The Company will notify the Trustee when
any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
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(i) 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 Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act 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;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner
and to the extent provided in Section 6.03(ii), 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 (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default. "Event of Default," with respect to
any series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(ii) default in the payment of any interest upon any Security
of such series as and when it become due and payable, and continuance
of such default for a period of 30 days; or
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(iii) failure on the part of the Company or any Guarantor duly
to observe or perform any of the other covenants or agreements on its
part in the Securities of such series or in this Indenture and
continuance of such failure for a period of 30 days after the date on
which written notice of such failure, requiring the Company or any
Guarantor to remedy the same and stating that such notice is a "Notice
of Default" hereunder, shall have been given by registered mail to the
Company or any Guarantor by the Trustee, or to the Company, any
Guarantor and the Trustee by the holders of at least 25% in aggregate
principal amount of the Securities of such series at the time
Outstanding; or
(iv) the entry by a court of competent jurisdiction of an
order or decree under the Bankruptcy Code that:
(A) is for relief against the Company or any
Guarantor in an involuntary case;
(B) appoints a receiver, custodian, assignee,
trustee, sequestrator (or other similar official) pursuant to
or within the meaning of the Bankruptcy Code, any law relating
to insolvency or similar law of the Company or any Guarantor
or for any substantial part of its property; or
(C) orders the winding up or liquidation of the
Company or any Guarantor; or any similar relief is granted
under any foreign laws and the order or decree remains
unstayed and in effect for 60 days; or
(v) the commencement of a voluntary case pursuant to or within
the meaning of the Bankruptcy Code by the Company or any Guarantor, or
the consent by the Company or any Guarantor to the entry of an order
for relief against it in an involuntary case pursuant to or within the
meaning of the Bankruptcy Code, or the consent by the Company or any
Guarantor to the appointment of a receiver, custodian, assignee,
trustee, sequestrator (or other similar official) pursuant to or within
the meaning of the Bankruptcy Code, any law relating to insolvency or
similar law, or the making of a general assignment by the Company or
any Guarantor for the benefit of its creditors, or the taking of any
comparable action under any foreign laws relating to insolvency; or
(viii) any other Event of Default provided with respect to
Securities of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default under clauses (iv) or (v) of
Section 7.01) with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series to be immediately due and payable, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration the same shall become immediately due and payable. If an Event
of Default under clause (iv) or (v) of Section 7.01 occurs, the principal of all
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Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue installments of interest on all
Securities of such series,
(b) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor by the terms of the
Securities of such series,
(c) interest upon overdue installments of interest at
the rate or rates prescribed therefor by the terms of the
Securities of such series, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, the Security
Registrar, any Paying Agent, and their agents and counsel and
all other amounts due the Trustee under Section 8.07; and
(ii) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 7.13.
No such recession shall affect any subsequent default or impair any
right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(i) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or
premium, if any, on any Security of any series at the Maturity thereof
(including a Redemption Date);
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the
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overdue principal and premium, if any, and upon overdue installments of
interest, at the rate or rates prescribed therefor by the terms of any such
Security; and, in addition thereto, such further amount as shall be sufficient
to cover the reasonable costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, any Guarantor or any other Obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, any Guarantor or any other Obligor upon
such Securities, wherever situated.
If an Event of Default with respect to any series of Securities 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 7.04. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company, any Guarantor or any other Obligor upon the Securities or the
property of the Company, any Guarantor or of such other Obligor or their
creditors, the Trustee (irrespective of whether the principal of any 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 or any Guarantor 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, premium, if any, and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) 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 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 to it for the reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon 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 of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or under the
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto 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 and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. Application of Money Collected. Any money collected by
the Trustee with respect to a series of Securities 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,
premium, if any, or interest, upon presentation of the Securities of such series
or coupons appertaining thereto, if any, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 8.07;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of such series and coupons for principal, premium, if
any, and interest, 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 Securities of
such series and coupons, if any, for principal, premium, if any, and
interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
series or any related coupons 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:
(i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
such series;
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(ii) the Holders of not less than a 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(iii) 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;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series 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 such series or to obtain or to seek
to obtain priority or preference over any other 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 the Holders of Securities of such series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Securities or coupons in the last paragraph of Section 3.06,
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
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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 7.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to 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 7.12. Control by Holders67. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability; and
(iii) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or
interest on any Security of such series; or
(ii) 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 the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
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Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
Securities or coupons for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security or payment of any coupon on or
after the respective Stated Maturities expressed in such Security or coupon (or,
in the case of redemption or repayment, on or after the Redemption Date or
Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during
the continuance of an Event of Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee with
respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate
or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform as to form to
the requirements of the Indenture.
(ii) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise,
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as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(iii) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) this Subsection shall not be construed to limit the effect
of subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to Securities of
such series; and
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(iv) The provisions of Section 315(a) and (d) of the Trust Indenture
Act are hereby excluded from this Indenture.
(v) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default. Within 45 days after the occurrence of
any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Registered Securities of such series
entitled to receive reports pursuant to Section 6.03(ii) 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, premium, if any, or interest on any Security of such
series, or any related coupons the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of Securities of such series. For the purpose of this Section, the
term "default," with respect to Securities of any series, 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.
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SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided
in Section 8.01:
(i) 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, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) 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;
(iii) 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;
(iv) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(v) 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;
(vi) 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, security or other paper or document, but the
Trustee, in its discretion, may make further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(vii) 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;
(viii) the Trustee shall not be charged with knowledge of any
default (as defined in Section 8.02) or Event of Default (other than a
default or Event of Default under Sections 7.01(i) or (ii) if the
Trustee is also the Paying Agent with respect to the Security of the
relevant series) unless either (1) a Responsible Officer of the Trustee
shall have actual knowledge of such default or Event of Default or
(2) written notice of such default
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or Event of Default shall have been given to the Trustee by the
Company, any Paying Agent or any Holder; and
(ix) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
SECTION 8.04. 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 neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, the Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, 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 8.06. 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 in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder as the Company
and the Trustee may agree to from time to time in writing (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(ii) 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
(iii) to indemnify the 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 this trust, 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 set forth in this Section 8.07 shall
survive the resignation or removal of any Trustee, the discharge of the
Company's obligations pursuant to Article Eleven
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of this Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of Section 310 of
the Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the Securities of any series by virtue of
being Trustee with respect to the Securities of any particular series of
Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee with respect to each series of Securities hereunder which
shall be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $500,000,000, subject to supervision or examination by
Federal or State authority; provided, however, that if Section 310(a) of the
Trust Indenture Act or the rules and regulations of the Commission under the
Trust Indenture Act at any time permit a corporation organized and doing
business under the laws of any other jurisdiction to serve as trustee of an
indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have
been delivered to the resigning 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 Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time 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.
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(iv) If at any time:
(a) the Trustee shall fail to comply with Section
8.08 with respect to any series of Securities after written
request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security of such series for at least
six months; or
(b) the Trustee shall cease to be eligible under
Section 8.09 with respect to any series of Securities and
shall fail to resign after written request therefor by the
Company or by any Holder of Securities of such series; or
(c) the Trustee shall become incapable of acting with
respect to any series of Securities 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, (1) the Company by a Board Resolution may
remove the Trustee with respect to such series, or (2) subject to
Section 7.14, 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 removal of the Trustee and the appointment of a
successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a
vacancy shall occur in the office of Trustee with respect to any series
of Securities for any cause, 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
8.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by the 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 with respect to such series, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to such series and to that extent
supersede the successor Trustee appointed by the Company with respect
to such series. If no successor Trustee with respect to such series
shall have been so appointed by the Company or the Holders of
Securities of such series and accepted appointment in the manner
hereinafter provided, 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 such series.
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(vi) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first- class mail, postage prepaid, to the Holders of Registered
Securities of such series as their names and addresses appear in the
Security Register and, if Securities of such series are issuable as
Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address
of its Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case
of the appointment hereunder of a successor Trustee with respect to any series
of 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 with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such 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 such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to all or any
such series.
(ii) 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 (a) 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, (b)
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
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign,
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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, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
Obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of such claims
against the Company (or any such other Obligor). A Trustee that has resigned or
been removed shall be subject to and comply with said Section 311 to the extent
required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities. Such Authenticating Agent or Agents at the option of the Trustee
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issuance, exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.06, 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. Whenever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication or the delivery of Securities to the Trustee for authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent, a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent and delivery of
Securities to the Authenticating Agent on behalf of the Trustee. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a
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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. Notwithstanding the foregoing, an Authenticating
Agent located outside the United States may be appointed by the Trustee if
previously approved in writing by the Company and if such Authenticating Agent
meets the minimum capitalization requirements of this Section 8.14. 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 (and upon
request by the Company shall) 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 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. 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.
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.
_____________, as Trustee,
by:_________________________________
as Authenticating Agent
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by:_________________________________
Authorized Signatory"
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or
Person to the Company or any Guarantor, and the assumption by any such
successor of the covenants of the Company or any Guarantor, as the case
may be, herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder with respect to
one or more series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company or any Guarantor,
for the benefit of the Holders of Securities of all or any series of
Securities or coupons (and if such covenants are to be for the benefit
of less than all series of Securities or coupons, 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 any Guarantor; or
(iv) 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 the Indenture; provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons; or
(v) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities,
to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of
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other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form; provided any such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons; or
(vii) to add to, change or eliminate any of the provisions of
this Indenture; provided that any such addition, change or elimination
(a) shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is adversely affected by such addition, change or
elimination and (b) shall not apply to any Securities Outstanding; or
(viii) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01; or
(ix) to evidence any changes to Section 8.09 as permitted by
the terms thereof; or
(x) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; provided such action shall not
adversely affect the interest of Holders of Securities of any series or
any related coupons.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) change the Maturity of the principal of, or the Stated
Maturity of any installment of interest (or premium, if any) on, any
Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligation of the
Company to pay additional amounts pursuant to Section 5.04 (except as
contemplated by Section 10.01(i) and permitted by Section 9.01), or
change the method of calculating interest thereon, or reduce the
minimum rate of interest thereon, 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 or repayment, on or after the
Redemption Date or Repayment Date);
(ii) release any Guarantor from its Guarantee of any
Obligation or indebtedness of the Company pursuant to this Indenture or
amend Article Fourteen.
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(iii) 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 of certain defaults hereunder and their
consequences) provided for in this Indenture or reduce the requirements
of Section 16.04 for a quorum;
(iv) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 5.02; or
(v) make any Security payable in money other than that stated
in such Security; or
(vi) modify any of the provisions of this Section or Section
7.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. It shall not be
necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such
Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities 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,
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new Securities 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.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
Neither the Company nor any Guarantor shall consolidate with or merge into any
other corporation or convey or transfer all or substantially all of the property
and assets of any of its divisions or lines of business to any single Person,
unless:
(i) the Person formed by such consolidation or into which the
Company or any Guarantor, as applicable, is merged or the Person which
acquires by conveyance or transfer all or substantially all of the
property and assets of any division or line of business of the Company
or any Guarantor, as applicable, shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of, premium, if any, and interest (including all
additional amounts, if any, payable pursuant to Section 5.04) on all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 10.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of all or substantially
all of the property and assets of any of division or line of business of the
Company or any Guarantor in accordance with Section 10.01, the successor Person
formed by such consolidation or into which the Company or such Guarantor is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or such
Guarantor under this Indenture with the same effect as if such successor Person
had been named as the Company or such Guarantor herein.
<PAGE> 69
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either
(a) all Securities theretofore authenticated and
delivered (other than (1) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has not been waived
as provided in Section 3.05, (2) coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
4.07, (3) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.06, and (4) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 5.03) have been delivered to the Trustee for
cancellation; or
(b) all such Securities not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Maturity within one year, or
(3) 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 (b) (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee, as trust funds in
trust for the purpose, an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal, premium, if
any, and interest to the date of such deposit (in the ease of
Securities which have become due and payable), or to the Maturity or
Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein
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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 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 11.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability. No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any
Security or coupon, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this
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Indenture or in any of the Securities or coupons or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Securities.
ARTICLE THIRTEEN
BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES
SECTION 13.01. Applicability of Article. Securities which are issued as
Global Securities shall be issued in accordance with this Article.
SECTION 13.02. Book-Entry Provisions For Global Securities. (a) Global
Securities may be deposited with, or on behalf of, a Depositary. Members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depositary or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever. Any Holder of
the Global Security shall, by acceptance of such Global Security, agree that the
transfers of beneficial interests in such Global Security may be effected only
through a book-entry system maintained by the Holder of such Global Security (or
its agent), and that ownership of a beneficial interest in the Global Security
shall be required to be reflected in a book-entry system. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or an agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Security.
(b) Each Depositary designated pursuant to Section 3.01 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
(c) Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for individual Securities
represented thereby, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary. Interests of beneficial owners in the
Global Securities (each an "Interest") may be transferred to one beneficial
owner or to another Agent Member or exchanged for definitive Securities in
accordance with the rules and procedures of the Depositary and the provisions of
this Indenture. In addition, definitive Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in Global
Securities if (i) the Depositary for the Securities notifies the Company that
the Depositary is unwilling or unable to continue as Depositary for the Global
Securities or is no longer eligible to serve as Depositary pursuant to the terms
of this
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Indenture and a successor Depositary is not appointed by the Company within 90
days after delivery of such notice; or (ii) the Company, at its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
definitive Securities under this Indenture, then the Company shall execute, and
the Trustee shall, upon receipt of a Company Order in accordance with Section
3.03 hereof, authenticate and deliver, definitive Securities in an aggregate
principal amount equal to the principal amount of the Global Securities in
exchange for such Global Securities. If specified by the Company pursuant to
Section 3.01 with respect to a series of Securities, the Depositary for such
series of Securities may surrender a Global Security for such series of
Securities in exchange in whole or in part for Securities of such series of like
tenor and terms and in definitive form on such terms as are acceptable to the
Company, the Trustee and such Depositary.
(d) In connection with the transfer of any Interest from one
beneficial owner to another Agent Member not taking a definitive Security, but
an Interest, pursuant to paragraph (c), the Depositary shall reflect on its
books and records the date, the name of the transferor and transferee, and the
amount of the Interest transferred.
(e) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to the third sentence of paragraph (c) of
this Section, the Global Securities shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute and the Trustee upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series shall authenticate and deliver, without service
charge:
(i) to the Depositary or to each Person specified by such
Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security of like
tenor and terms and in an authorized denomination equal to the
difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
delivered to Holders thereof.
(f) The Holder of any Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(g) Upon the exchange of Global Securities for Securities in
definitive form, such Global Securities shall be canceled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to
Section 3.05 shall be registered in such names and in such authorized
denominations, and delivered to such addresses, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered or to the Depositary. The Trustee shall deliver
Bearer Securities issued in exchange for a Temporary Global Bearer Security
pursuant to Section 3.05 to the Depositary or to the Persons at such addresses,
and in such authorized denominations, as the
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Depositary for such Temporary Global Bearer Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee in writing; provided, however, that no definitive Bearer Security shall
be delivered in exchange for a Temporary Global Bearer Security other than in
accordance with the provisions of Sections 3.03 and 3.04.
(h) In any exchange provided for in this Article Thirteen, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (i) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (ii) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (iii) as either Registered or Bearer
Securities, if the Securities of such series are issuable in either form;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a Temporary Global Bearer Security other than in accordance with
the provisions of Sections 3.03 and 3.04 and this Article Thirteen.
ARTICLE FOURTEEN
GUARANTEE
SECTION 14.01. Applicability of Article. The Guarantee of any Guarantor
or Guarantors, if there be any, shall be effectuated in accordance with this
Article.
SECTION 14.02. Guarantee. The Guarantors unconditionally and jointly
and severally guarantee and promise to pay to the Holders and the Trustee (each
a "Beneficiary"), on demand made at any time while an Event of Default exists,
in lawful money of the United States of America, any and all Obligations of the
Company from time to time owed to the Beneficiaries (the "Obligor Guarantee").
The term "Obligations" means any and all present and future obligations and
liabilities of the Company of every type and description to the Beneficiaries
under this Indenture and the Securities of the series such Guarantors have
guaranteed (the "Guaranteed Securities"), whether for principal, premium (if
any), interest, expenses, indemnities or other amounts, in each case whether due
or not due, absolute or contingent, voluntary or involuntary, liquidated or
unliquidated, determined or undetermined, now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished and
later increased, created or incurred, whether or not arising after the
commencement of a proceeding under the Bankruptcy Code (including post-petition
interest) and whether or not allowed or allowable as a claim in any such
proceeding, and whether or not recovery of any such obligation or liability may
be barred by a statute of limitations or such obligation or liability may
otherwise be unenforceable. All Obligations shall be conclusively presumed to
have been created in reliance on the Obligor Guarantee. The Obligor Guarantee is
a continuing Guarantee of the Obligations and, except as otherwise provided in
this Indenture, may not be revoked and shall not otherwise terminate unless and
until any and all Obligations have been indefeasibly paid and performed in full.
SECTION 14.03. Nature of Guarantee. The liability of each Guarantor
under the Obligor Guarantee is independent of and not in consideration of or
contingent upon the liability of the Company or any other Obligor, and a
separate action or actions may be brought and prosecuted
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against any Guarantor, whether or not any action is brought or prosecuted
against the Company or any other Obligor or whether the Company or any other
Obligor is joined in any such action or actions. The Obligor Guarantee given by
each Guarantor shall be construed as a continuing, absolute and unconditional
Guarantee of payment (and not merely of collection) without regard to:
(a) the legality, validity or enforceability of the Securities or
this Indenture, any of the Obligations, any security or Guarantee given by any
other Guarantor;
(b) any defense (other than payment), set-off or counterclaim that
may at any time be available to the Company or any other Obligor against, and
any right of setoff at any time held by, any Beneficiary; or
(c) any other circumstance whatsoever (with or without notice to
or knowledge of any Guarantor or any other Obligor), whether or not similar to
any of the foregoing, that constitutes, or might be construed to constitute, an
equitable or legal discharge of the Company or any other Obligor, in bankruptcy
or in any other instance.
Any payment by any Obligor or other circumstance that operates to toll
any statute of limitations applicable to such Obligor shall also operate to toll
the statute of limitations applicable to each Guarantor.
SECTION 14.04. Authorization. Each Guarantor authorizes each
Beneficiary, without notice to or further assent by such Guarantor, and without
affecting any Guarantor's liability hereunder (regardless of whether any
subrogation or similar right that such Guarantor may have or any other right or
remedy of such Guarantor is extinguished or impaired), from time to time to do
any or all of the following:
(a) permit the Company to increase or create Obligations, or
terminate, release, compromise, subordinate, extend, accelerate or otherwise
change the amount or time, manner or place of payment of, or rescind any demand
for payment or acceleration of, the Obligations or any part thereof, consent or
enter into supplemental indentures or otherwise amend the terms and conditions
of the Guaranteed Securities or this Indenture or any provision thereof;
(b) take and hold any collateral from the Company or any other
Person, prefect or refrain from perfecting a lien on any collateral, and
exchange, enforce, subordinate, release (whether intentionally or
unintentionally), or take or fail to take any other action in respect of, any
collateral or lien or any part thereof;
(c) exercise in such manner and order as it elects in its sole
discretion, fail to exercise, waive, suspend, terminate or suffer expiration of,
any of the remedies or rights of such Beneficiary against the Company or any
other Obligor in respect of any Obligations or any security;
(d) release, add or settle with any Obligor in respect of the
Obligor Guarantee or the Obligations;
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(e) accept partial payments on the Obligations and apply any and
all payments or recoveries from such Obligor to such of the Obligations as any
Beneficiary may elect in its sole discretion, whether or not such Obligations
are secured or guaranteed;
(f) refund at any time, at such Beneficiary's sole discretion, any
payments or recoveries received by such Beneficiary in respect of any
Obligations; and
(g) otherwise deal with the Company or any other Obligor as such
Beneficiary may elect in its sole discretion.
SECTION 14.05. Certain Waivers. Each Guarantor waives:
(a) the right to require the Beneficiaries to proceed against the
Company or any other Obligor, to proceed against or exhaust any collateral or to
pursue any other remedy in any Beneficiary's power whatsoever and the right to
have the property of the Company or any other Obligor first applied to the
discharge of the Obligations;
(b) all rights and benefits under applicable law purporting to
reduce a Guarantor's obligations in proportion to the obligation of the
principal or providing that the obligation of a surety or Guarantor must neither
be larger nor in other respects more burdensome than that of the principal;
(c) the benefit of any statute of limitations affecting the
Obligations or any Guarantor's liability hereunder;
(d) any requirement of marshaling or any other principle of
election of remedies;
(e) any right to assert against any Beneficiary any defense (legal
or equitable), set-off, counterclaim and other right that any Guarantor may now
or any time hereafter have against the Company or any other Obligor;
(f) presentment, demand for payment or performance (including
diligence in making demands hereunder), notice of dishonor or nonperformance,
protest, acceptance and notice of acceptance of the Obligor Guarantee, and,
except to the extent expressly required by the Guaranteed Securities or this
Indenture, all other notices of any kind, including (i) notice of any action
taken or omitted by the Beneficiaries in reliance hereon, (ii) notice of any
default by the Company or any other Obligor, (iii) notice that any portion of
the Obligations is due, (iv) notice of any action against the Company or any
other Obligor, or any enforcement or other action with respect to any
collateral, or the assertion of any right of any Beneficiary hereunder; and
(g) all defenses that at any time may be available to any
Guarantor by virtue of any valuation, stay, moratorium or other law now or
hereafter in effect.
SECTION 14.06. No Subrogation; Certain Agreements. (a) EACH GUARANTOR
WAIVES ANY AND ALL RIGHTS OF SUBROGATION, INDEMNITY OR REIMBURSEMENT, AND ANY
AND ALL BENEFITS OF AND RIGHTS TO ENFORCE ANY POWER, RIGHT OR REMEDY THAT ANY
BENEFICIARY MAY
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NOW OR HEREAFTER HAVE IN RESPECT OF THE OBLIGATIONS AGAINST THE COMPANY OR ANY
OTHER OBLIGOR (OTHER THAN RIGHTS OF CONTRIBUTION FROM OTHER GUARANTORS), AND ANY
AND ALL OTHER RIGHTS AND CLAIMS (AS DEFINED IN THE BANKRUPTCY CODE) ANY
GUARANTOR MAY HAVE AGAINST THE COMPANY, UNDER APPLICABLE LAW OR OTHERWISE, AT
LAW OR IN EQUITY, BY REASON OF ANY PAYMENT UNDER THE OBLIGOR GUARANTEE, UNLESS
AND UNTIL THE OBLIGATIONS SHALL HAVE BEEN PAID IN FULL.
(b) Each Guarantor assumes the responsibility for being and
keeping itself informed of the financial condition of each other Obligor and of
all other circumstances bearing upon the risk of nonpayment of the Obligations
or the Guarantee of any other Guarantor that diligent inquiry would reveal, and
agrees that the Beneficiaries shall have no duty to advise any Guarantor of
information regarding such condition or any such circumstances.
SECTION 14.07. Bankruptcy No Discharge. (a) Without limiting Section
14.03, the Obligor Guarantee shall not be discharged or otherwise affected by
any bankruptcy, reorganization or similar proceeding commenced by or against the
Company or any other Obligor, including (i) any discharge of, or bar or stay
against collecting, all or any part of the Obligations in or as a result of any
such proceeding, whether or not assented to by any Beneficiary, (ii) any
disallowance of all or any portion of any Beneficiary's claim for repayment of
the Obligations, (iii) any use of cash or other collateral in any such
proceeding, (iv) any agreement or stipulation as to adequate protection in any
such proceeding, (v) any failure by any Beneficiary to file or enforce a claim
against the Company or any other Obligor or its estate in any bankruptcy or
reorganization case, (vi) any amendment, modification, stay or cure of any
Beneficiary's rights that may occur in any such proceeding, (vii) any election
by any Beneficiary under Section 1112(b)(2) of the Bankruptcy Code, or (viii)
any borrowing or grant of a lien under Section 364 of the Bankruptcy Code. Each
Guarantor understands and acknowledges that by virtue of the Obligor Guarantee,
it has specifically assumed any and all risks of any such proceeding with
respect to the Company and each other Obligor.
(b) Notwithstanding anything in this Article Fourteen to the
contrary, any Event of Default under the Guaranteed Securities or Section 7.01
of this Indenture shall render all Obligations automatically due and payable for
purposes of the Obligor Guarantee, without demand on the part of the Trustee or
any Holder.
(c) Notwithstanding anything to the contrary herein contained, the
Obligor Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time any payment, or any part thereof, of any or all of the
Obligations is rescinded, invalidated, declared to be fraudulent or preferential
or otherwise required to be restored or returned by any Beneficiary in
connection with any bankruptcy, reorganization or similar proceeding involving
the Company, any other Obligor or otherwise or if any Beneficiary elects to
return any such payment or proceeds or any part thereof in its sole discretion,
all as though such payment had not been made or such proceeds not been received.
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SECTION 14.08. Severability of Void Obligations under Guarantee. The
obligations of any Guarantor hereunder shall be limited to the maximum amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the Bankruptcy Code or any applicable provisions of comparable
state law.
SECTION 14.09. Right of Contribution. In order to provide for just and
equitable contribution among the Guarantors in connection with the Obligor
Guarantee, the Guarantors have agreed among themselves that if any Guarantor
satisfies some or all of the Obligations (a "Funding Guarantor"), the Funding
Guarantor shall be entitled to contribution from the other Guarantors that have
positive Maximum Net Worth (as defined below) for all payments made by the
Funding Guarantor in satisfying the Obligations, so that each Guarantor that
remains obligated under the Obligor Guarantee at the time that a Funding
Guarantor makes such payment (a "Remaining Guarantor") and has a positive
Maximum Net Worth shall bear a portion of such payment equal to the percentage
that such Remaining Guarantor's Maximum Net Worth bears to the aggregate Maximum
Net Worth of all Remaining Guarantors that have positive Maximum Net Worth.
As used herein, "Net Worth" means, with respect to any Guarantor, the
amount, as of any date of calculation, by which the sum of a Person's assets
(including subrogation, indemnity, contribution, reimbursement and similar
rights that such Guarantor may have), determined on the basis of a "fair
valuation" or their "fair salable value" (whichever is the applicable test under
Section 548 and other relevant provisions of the Bankruptcy Code and the
relevant state fraudulent conveyance or transfer laws) is greater than the
amount that will be required to pay all of such Person's debts, in each case
matured or unmatured, contingent or otherwise, as of the date of calculation,
but excluding liabilities arising under the Obligor Guarantee and excluding, to
the maximum extent permitted by applicable law with the objective of avoiding
rendering such Person insolvent, liabilities subordinated to the Obligations
arising out of loans or advances made to such Person by any other Person.
"Maximum Net Worth" means, with respect to any Guarantor, the greatest of the
Net Worths calculated as of the following dates: (A) the date on which the
Guarantor becomes a Guarantor hereunder, (B) the date on which such Guarantor
expressly reaffirms the Obligor Guarantee, (C) the date on which demand for
payment is made on such Guarantor hereunder, (D) the date on which payment is
made by such Guarantor hereunder or (E) the date on which any judgment, order or
decree is entered requiring such Guarantor to make payment hereunder or in
respect hereof. The meaning of the terms "fair valuation" and "fair salable
value" and the calculation of assets and liabilities shall be determined and
made in accordance with the relevant provisions of the Bankruptcy Code and
applicable state fraudulent conveyance or transfer laws.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article. Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with
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their terms and (except as otherwise specified pursuant to Section 3.01 for
Securities of such series) in accordance with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is subject
to repayment in whole or in part at the option of the Holder thereof on a
Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option, Notice. Each Holder desiring to
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date; provided, however, that surrender of Bearer Securities
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series and
tenor, of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series and tenor of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be repaid; provided, however, that the
issuance of a Registered Security therefor shall be
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subject to applicable laws and regulations, including provisions of the United
States Federal income tax laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The
Company may elect, with respect to Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity, at any time
prior to any Repayment Date to designate one or more Remarketing Entities to
purchase, at a price equal to the Repayment Price, Securities of such series
from the Holders thereof who give notice and surrender their Securities in
accordance with Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 15.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price, in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate
prescribed therefor by such Securities from time to time until payment in full
of such principal amount.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee may
at any time call a meeting of Holders of Securities of any series issuable as
Bearer Securities for any purpose specified in Section 16.01, to be held at such
time and at such place in the City of [ ], the Borough
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of Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(ii) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 16.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the City of New York or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (i)
of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum; Action. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum; provided
further, however, that if any action is to be taken at such meeting with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other Act which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority in
principal amount of the Outstanding Securities of a series, the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In the
absence of a quorum in any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairperson of the meeting prior
to the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 16.02(i), except that
such notice need be given only once not
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less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 16.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected
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by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 16.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairperson of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record, at least in triplicate,
of the proceedings of each meeting of Holders of Securities of any series shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 16.02 and, if applicable, Section 16.04.
Each copy shall be signed and verified by the affidavits of the permanent
chairperson and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
___________________, hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
AAMES FINANCIAL CORPORATION,
by: _____________________________________________
Name:
Title:
[CORPORATE SEAL]
________________, as Trustee,
by: _____________________________________________
Name:
Title:
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<PAGE> 84
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial interest
in the Securities is being acquired by or on behalf of a United States person,
that such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder. If the
undersigned is a dealer, the undersigned agrees to obtain a similar certificate
from each person entitled to delivery of any of the above-captioned Securities
in bearer form purchased from it; provided, however, that, if the undersigned
has actual knowledge that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or definitive
bearer form to the person who signed such certificate notwithstanding the
delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex or facsimile if the above statement
as to beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities. We
understand that this certificate is required in connection with certain tax
legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably
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<PAGE> 85
authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than 15 days
prior to the Global Exchange Date]
[Name of Person Entitled to Receive Bearer
Security]
------------------------------------------
(Authorized Signatory)
Name:
Title:
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<PAGE> 86
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL BEARER SECURITY CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $_______ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the Temporary Global Bearer
Security representing the above-captioned Securities excepted in such
certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: _________________, 19__
[To be dated no earlier than
the Global Exchange Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By
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<PAGE> 87
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO A GLOBAL
EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date (as defined in
the Indenture relating to the Securities) on [Insert Date], the undersigned,
which is a holder of an interest in the Temporary Global Bearer Security
representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date will
be paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations (Section Mark) 1.6049-4(c)(1)(ii). We undertake to
retain certificates received from our member organizations in connection
herewith for four years from the end of the calendar year in which such
certificates are received.
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<PAGE> 88
The foregoing reflects any advice received subsequent to the date of
any certificate stating that the statements contained in such certificate are no
longer correct.
Dated: _______________, 19__
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office,
as Operator of the Euroclear System]
[CEDEL S.A.]
By
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<PAGE> 89
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO A GLOBAL EXCHANGE
DATE CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the
Temporary Global Bearer Security representing the above-captioned Securities and
held by you for our account is beneficially owned by a United States person or,
if any portion thereof held by you for our account is beneficially owned by a
United States person, such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
regulations which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder, and
certifies that either it has provided an Internal Revenue Service Form W-9 or is
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury regulations.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex or facsimile if the above statement
as to beneficial ownership is not correct on the Interest Payment Date (as
defined in the Indenture relating to the Securities) on [Insert Date] as to any
such portion of such Temporary Global Bearer Security.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:__________________, 19__
[To be dated on or after the 15th
day before the relevant Interest Payment Date]
[Name of Account Holder]
-----------------------------------------
(Authorized Signatory)
Name:
Title:
79
<PAGE> 1
EXHIBIT 12.1
RATIO CALCULATIONS
<TABLE>
<CAPTION>
1992 1993 1994 1995 1996
--------- --------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Income before income taxes.... 4,026,000 8,356,000 8,983,000 17,151,000 53,531,000
Interest expense.............. 171,000 211,000 322,000 3,205,000 9,348,000
--------- --------- --------- ---------- ----------
Total................. 4,197,000 8,567,000 9,305,000 20,356,000 62,879,000
divided by divided by divided by divided by divided by
Interest expense.............. 171,000 211,000 322,000 3,205,000 9,348,000
--------- --------- --------- ---------- ----------
Ratio......................... 24.54 40.60 28.90 6.35 6.73
</TABLE>
3
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
August 12, 1996 appearing in Aames Financial Corporation's Annual Report on Form
10-K for the year ended June 30, 1996. We also consent to the incorporation by
reference of our report dated August 28, 1996 which appears in the Current
Report on Form 8-K/A dated September 16, 1996. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Los Angeles, California
September 13, 1996
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of Aames Financial Corporation ("AFC") to be filed September 16,
1996 of our report dated August 16, 1996, relating to the balance sheets of One
Stop Mortgage, Inc. as of June 30, 1996 and December 31, 1995 and the related
statements of operations, changes in stockholders' equity and cash flows for the
period January 1, 1996 through June 30, 1996 and the period August 24, 1995
(inception) through December 31, 1995, which report appears in AFC's report on
Form 8-K filed with the United States Securities and Exchange Commission on
September 12, 1996, and to the reference to our firm under the heading "Experts"
in the prospectus.
/s/ KPMG Peat Marwick LLP
Orange County, California
September 13, 1996
