Exhibit 4.01
EXECUTION COPY
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TRUST INDENTURE
between
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
and
FIRST UNION NATIONAL BANK,
as Trustee
Dated as of September 15, 1997
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CROSS REFERENCE SHEET*
Between provisions of Trust Indenture Act of 1939 and
Indenture to be dated as of September 15, 1997, between Financial Security
Assurance Holdings Ltd. and First Union National Bank, as Trustee:
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SECTION OF THE ACT SECTION OF INDENTURE
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310(a)(1) and (2)..................................... 6.09
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310(a)(3) and (4)..................................... Inapplicable
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310(b)................................................ 6.08 and 6.10(a), (b)
and (d)
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310(c)................................................ Inapplicable
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311(a)................................................ 6.13(a) and (c)(1) and
(2)
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311(b)................................................ 6.13(b)
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311(c)................................................ Inapplicable
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312(a)................................................ 4.01 and 4.02(a)
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312(b)................................................ 4.02(a) and (b)(i) and
(ii)
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312(c)................................................ 4.02 (c)
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313(a)................................................ 4.04(a)(i), (ii),
(iii), (iv), (v) and
(vi)
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313(b)(1)............................................. Inapplicable
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313(b)(2)............................................. 4.04
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313(c)................................................ 4.04
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313(d)................................................ 4.04
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314(a)................................................ 4.03
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314(b)................................................ Inapplicable
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314(c)(1) and (2)..................................... 11.05
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314(c)(3)............................................. Inapplicable
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* This Cross Reference Sheet is not part of the Indenture.
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SECTION OF THE ACT SECTION OF INDENTURE
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314(d)........................................................ Inapplicable
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314(e)........................................................ 11.05
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314(f)........................................................ Inapplicable
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315(a), (c) and (d)........................................... 6.01
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315(b)........................................................ 5.11
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315(e)........................................................ 5.12
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316(a)(1)..................................................... 5.09
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316(a)(2)..................................................... Not required
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316(a) (last sentence)........................................ 7.04
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316(b)........................................................ 5.07
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317(a)........................................................ 5.02
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317(b)........................................................ 3.04(a) and (b)
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318(a)........................................................ 11.07
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Terms Defined............................. 1
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally................................... 9
SECTION 2.02. Form of Trustee's Certificate of
Authentication........................... 9
SECTION 2.03. Amount Unlimited; Issuable in Series..............10
SECTION 2.04. Authentication and Delivery of Debt
Securities.............................. 13
SECTION 2.05. Execution of Debt Securities..................... 15
SECTION 2.06. Certificate of Authentication.................... 15
SECTION 2.07. Denomination and Date of Debt
Securities; Payments of Interest........ 16
SECTION 2.08. Registration, Transfer and Exchange.............. 17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost
and Stolen Debt Securities.............. 19
SECTION 2.10. Cancellation of Debt Securities;
Destruction Thereof..................... 20
SECTION 2.11. Temporary Debt Securities........................ 21
SECTION 2.12. Debt Securities Issuable in the Form of
a Registered Global Security............ 21
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest................ 24
SECTION 3.02. Offices for Payments, etc........................ 24
SECTION 3.03. Appointment to Fill a Vacancy in Office
of Trustee.............................. 25
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SECTION 3.04. Paying Agents.................................... 25
SECTION 3.05. Written Statement to Trustee..................... 27
SECTION 3.06. Limitations on Liens............................. 27
SECTION 3.07. Limitations on Disposition of Stock of
Restricted Subsidiaries................. 27
SECTION 3.08. Corporate Existence.............................. 28
SECTION 3.09. Waiver of Certain Covenants...................... 28
ARTICLE IV
DEBT SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information
as to Names and Addresses of
Debt Securityholders.................... 28
SECTION 4.02. Preservation and Disclosure of Debt
Securityholders' Lists.................. 29
SECTION 4.03. Reports by the Issuer............................ 31
SECTION 4.04. Reports by the Trustee........................... 33
ARTICLE V
REMEDIES OF THE TRUSTEE AND DEBT
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration
of Maturity; Waiver of Default.......... 35
SECTION 5.02. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.................. 41
SECTION 5.03. Application of Proceeds.......................... 45
SECTION 5.04. Suits for Enforcement............................ 46
SECTION 5.05. Restoration of Rights on Abandonment
of Proceedings.......................... 47
SECTION 5.06. Limitations on Suits by Debt
Securityholders......................... 47
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SECTION 5.07. Unconditional Right of Debt
Securityholders to Institute Certain
Suits..............................................48
SECTION 5.08. Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default..................48
SECTION 5.09. Control by Debt Securityholders.............................49
SECTION 5.10. Waiver of Past Defaults.....................................50
SECTION 5.11. Trustee to Give Notice of Default, but
May Withhold in Certain Circumstances..............51
SECTION 5.12. Right of Court to Require Filing of Undertaking
to Pay Costs.......................................51
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the
Trustee; During Default; Prior
to Default.........................................52
SECTION 6.02. Certain Rights of the Trustee...............................54
SECTION 6.03. Trustee Not Responsible for Recitals,
Disposition of Debt Securities or
Application of Proceeds Thereof....................56
SECTION 6.04. Trustee and Agents May Hold Debt
Securities; Collections, Etc.......................57
SECTION 6.05. Monies Held by Trustee......................................57
SECTION 6.06. Compensation and Indemnification of
Trustee and Its Prior Claim........................57
SECTION 6.07. Right of Trustee to Rely on Officers'
Certificate, Etc...................................58
SECTION 6.08. Qualification of Trustee; Conflicting
Interests..........................................58
SECTION 6.09. Persons Eligible for Appointment as
Trustee............................................68
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee...............................69
SECTION 6.11. Acceptance of Appointment by
Successor Trustee..................................71
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee..................73
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SECTION 6.13. Preferential Collection of Claims
Against the Issuer.................................73
ARTICLE VII
CONCERNING THE DEBT SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Debt
Securityholders....................................80
SECTION 7.02. Proof of Execution of Instruments And
of Holding of Debt Securities......................80
SECTION 7.03. Holders to Be Treated as Owners.............................80
SECTION 7.04. Debt Securities Owned by Issuer Deemed
Not Outstanding....................................81
SECTION 7.05. Right of Revocation of Action Taken.........................82
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent
of Debt Securityholders............................83
SECTION 8.02. Supplemental Indentures Without Consent
of Debt Securityholders............................85
SECTION 8.03. Effect of Supplemental Indenture............................87
SECTION 8.04. Documents to be Given to Trustee............................87
SECTION 8.05. Notation on Debt Securities in Respect
of Supplemental Indentures.........................87
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Covenant Not to Merge, Consolidate, Sell
or Convey Property Except under
Certain Conditions.................................88
SECTION 9.02. Successor Corporation Substituted...........................89
SECTION 9.03. Opinion of Counsel to Trustee...............................90
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ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 10.01. Satisfaction and Discharge of Indenture............90
SECTION 10.02. Application by Trustee of Funds
Deposited for Payment of
Debt Securities................................92
SECTION 10.03. Repayment of Monies Held by Paying Agent...........92
SECTION 10.04. Return of Monies Held by Trustee and
Paying Agent Unclaimed for
Three Years....................................92
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from
Individual Liability..........................93
SECTION 11.02. Provisions of Indenture for the Sole
Benefit of Parties and Debt
Securityholders................................93
SECTION 11.03. Successors and Assigns of Issuer Bound
by Indenture...................................94
SECTION 11.04. Notices and Demands on Issuer, Trustee
and Debt Securityholders.......................94
SECTION 11.05. Officers' Certificate and Opinions of
Counsel; Statements to Be Contained
Therein........................................95
SECTION 11.06. Payments Due on Saturdays, Sundays
and Holidays...................................97
SECTION 11.07. Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939...............97
SECTION 11.08. New York Law to Govern.............................97
SECTION 11.09. Counterparts.......................................97
SECTION 11.10. Effect of Headings.................................98
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ARTICLE XII
REDEMPTION OF DEBT SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article.......................... 98
SECTION 12.02. Notice of Redemption; Partial
Redemptions................................... 98
SECTION 12.03. Payment of Debt Securities Called for
Redemption....................................100
SECTION 12.04. Exclusion of Certain Debt Securities
from Eligibility for Selection for
Redemption....................................101
SECTION 12.05. Mandatory and Optional Sinking Funds..............101
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Issuer's Option
to Effect Defeasance or Covenant
Defeasance....................................106
SECTION 13.02. Defeasance and Discharge..........................106
SECTION 13.03. Covenant Defeasance...............................107
SECTION 13.04. Conditions to Defeasance or Covenant
Defeasance....................................108
SECTION 13.05. Deposited Monies and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions................111
SECTION 13.06. Reinstatement.....................................112
vi
TRUST INDENTURE, dated as of September 15,
1997, between Financial Security Assurance Holdings
Ltd., a New York corporation (the "ISSUER"), and
First Union National Bank, a national banking
association (the "TRUSTEE").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debt securities, notes or other evidences of
indebtedness to be issued in one or more series (the "DEBT SECURITIES") up to
such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture, and to provide, among other things,
for the authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE, in consideration of the premises and the
purchases of the Debt Securities by the holders thereof, the Issuer and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Debt Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are
3
defined in the Trust Indenture Act of 1939 or the definitions of which in the
Securities Act of 1933 are referred to in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. 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. The
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act hereunder.
"BUSINESS DAY" means, with respect to any Debt Security, a day
that in the city (or in any of the cities, if more than one) in which amounts
are payable, as specified in the form of such Debt Security, is not a day on
which banking institutions are authorized by law or regulation to close.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if on any date after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
4
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at 230 S. Tryon St., Charlotte, NC, 28288.
"DEBT SECURITY" or "DEBT SECURITIES"(except as otherwise
provided in Section 6.08) has the meaning stated in the first recital of this
Indenture, or, as the case may be, Debt Securities that have been authenticated
and delivered under this Indenture.
"DEPOSITARY" means with respect to any Debt Securities issued
in the form of one or more Registered Global Securities, such Person as the
Board of Directors may designate and its successors.
"DOLLARS" shall mean United States Dollars.
"EVENT OF DEFAULT" means any event or condition
specified as such in Section 5.01.
"HOLDER", "HOLDER OF DEBT SECURITIES", "DEBT SECURITYHOLDER"
or other similar terms mean the registered holder of any Debt Security.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Debt Securities established as contemplated hereunder.
"INTEREST" means, when used with respect to non-interest
bearing Debt Securities, interest payable after maturity.
"ISSUER" means (except as otherwise provided in Section 6.13)
Financial Security Assurance Holdings Ltd., a
5
New York corporation, and, subject to Article Nine, its successors and
assigns.
"MORTGAGE" means any mortgage, pledge, lien,
security interest or other encumbrance.
"OFFICERS' CERTIFICATE" means a certificate signed by the
chairman of the Board of Directors or the president or any managing director and
by the treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.05.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer or who may be
other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 11.05, if and to the extent required hereby.
"ORIGINAL ISSUE DATE" of any Debt Security (or portion
thereof) means the earlier of (a) the date of such Debt Security or (b) the date
of any Debt Security (or portion thereof) for which such Debt Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"ORIGINAL ISSUE DISCOUNT DEBT SECURITY" means any Debt
Security that provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.01.
"OUTSTANDING" (except as otherwise provided in Section 6.08),
when used with reference to Debt Securities, subject to the provisions of
Section 7.04, means, as of any particular time, all Debt Securities
authenticated and delivered by the Trustee under this Indenture, except:
6
(a) Debt Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancelation;
(b) Debt Securities, or portions thereof, for the payment or
redemption of which monies in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the holders of such Debt Securities (if the
Issuer shall act as its own paying agent), PROVIDED that if such Debt
Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Debt Securities in substitution for which other Debt
Securities shall have been authenticated and delivered, or which shall
have been paid, pursuant to the terms of Section 2.08, 2.09, 2.11, 2.12
or 12.03 (except with respect to any such Debt Security as to which
proof satisfactory to the Trustee is presented that such Debt Security
is held by a person in whose hands such Debt Security is a legal, valid
and binding obligation of the Issuer).
In determining whether the holders of the requisite
principal amount of Outstanding Debt Securities of any or all series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original Issue
Discount Debt Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.01.
7
"PERSON" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PRINCIPAL" whenever used with reference to the Debt
Securities or any Debt Security or any portion thereof, shall be deemed to
include "and premium, if any".
"REGISTERED GLOBAL SECURITY" means a Debt Security issued to
the Depositary in accordance with Article Two and bearing the legend prescribed
in Section 2.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee,
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any trust officer, any
assistant trust officer, any assistant vice president, any assistant cashier,
any assistant secretary, any assistant treasurer, or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means Financial Security Assurance
Inc., a New York corporation, and any successor to all or substantially all of
its business; provided that such successor is a Subsidiary.
"SUBSIDIARY" means a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by the
Issuer or by one or more other
8
Subsidiaries, or by the Issuer and one or more other Subsidiaries.
"TRUSTEE" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in
Sections 8.01 and 8.02) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"VICE PRESIDENT" when used with respect to the Issuer 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 of "vice president".
"VOTING STOCK" means, with respect to any Subsidiary, stock of
any class or classes (or equivalent interests), if the holders of the stock of
such class or classes (or equivalent interests) are ordinarily, in the absence
of contingencies, entitled to vote for the election of the directors (or Persons
performing similar functions) of such Subsidiary, even though the right so to
vote has been suspended by the happening of such a contingency.
"YIELD TO MATURITY" means the yield to maturity on a series of
Debt Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, as
calculated in accordance with accepted financial practice.
9
ARTICLE II
SECURITIES
SECTION 2.01. FORMS GENERALLY. The Debt Securities of each
series shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or authorized in accordance with a
resolution of the Board of Directors or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their execution of the
Debt Securities.
The definitive Debt Securities shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities, as evidenced
by their execution of such Debt Securities.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Trustee's certificate of authentication
on all Debt Securities shall be in substantially the
following form:
This is one of the Debt Securities of the series designated
herein and referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as
Trustee
by ______________________________
Authorized Officer
10
SECTION 2.03. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Debt Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or in accordance with a resolution of the Board of
Directors and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Debt Securities of
any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from the Debt
Securities of any other series and from any other securities issued by
the Issuer);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series that may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of the series pursuant to Section 2.08, 2.09,
2.11, 2.12 or 12.03);
(3) the date or dates on which the principal of
the Debt Securities of the series is payable;
(4) the rate or rates at which the Debt Securities of the
series shall bear interest, if any, or the method by which such rate
shall be determined, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be
payable, the right, if any, of the Issuer to defer or extend an
interest payment date, and the record dates for the determination of
Holders to whom interest is payable;
11
(5) the place or places where the principal and any interest
on Debt Securities of the series shall be payable (if other than as
provided in Section 3.02);
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Issuer, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase
or repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which, the currency
or currencies (including currency unit or units) in which, and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of (and
premium, if any) and interest, if any, on the Debt Securities of the
series shall be payable, or in which the Debt Securities of the series
shall be denominated;
(10) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Registered Global
Securities and, in such case, the Depositary with respect to such
Registered Global Security or Securities and the circumstances under
which any such Registered Global Security may be registered for
transfer or exchange, or authenticated
12
and delivered, in the name of a Person other than such Depositary or
its nominee, if other than as set forth in Section 2.12;
(11) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Issuer set forth herein with
respect to the Debt Securities of such series.
(12) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 5.01 or provable in bankruptcy pursuant to Section
5.02;
(13) the application, if any, of Section 13.02 or
Section 13.03 to the Securities of any series;
(14) the relative degree, if any, to which the Debt Securities
of the series shall be senior to or be subordinated to other series of
Debt Securities in right of payment, whether such other series of Debt
Securities are Outstanding or not;
(15) the terms of any right to convert or exchange Debt
Securities of the series into or for other securities or property,
including (i) the conversion of or exchange price, (ii) the conversion
or exchange period, (iii) provisions as to whether conversion or
exchange will be at the option of the Holder or the Issuer and (iv) the
events requiring an adjustment to the conversion or exchange price;
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
13
(17) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Debt
Securities of such series.
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board of Directors or in any such
indenture supplemental hereto.
SECTION 2.04. AUTHENTICATION AND DELIVERY OF DEBT SECURITIES.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Debt Securities of any series executed by the
Issuer to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debt Securities to or upon the written order of
the Issuer, signed by both (a) the chairman of its Board of Directors, or any
vice chairman of its Board of Directors, or its president or any managing
director and (b) by its treasurer or any assistant treasurer or its secretary or
any assistant secretary, without any further action by the Issuer. In
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the
Board of Directors authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the
Secretary or an Assistant Secretary of the Issuer;
14
(3) an executed supplemental indenture, if any;
(4) an Officers' Certificate setting forth the form and terms
of the Debt Securities as required pursuant to Sections 2.01 and 2.03,
respectively and prepared in accordance with Section 11.05;
(5) an Opinion of Counsel, prepared in accordance with Section
11.05, which shall state:
(A) that the form or forms and terms of such Debt
Securities have been established by or in accordance with a
resolution of the Board of Directors or by a supplemental
indenture as permitted by Sections 2.01 and 2.03 in conformity
with the provisions of this Indenture;
(B) that such Debt Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Issuer;
(C) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Debt Securities
have been complied with; and
(D) such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate
and deliver any Debt Securities under this Section if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken by the Issuer
or if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall
15
determine that such action would expose the Trustee to personal liability to
existing Holders.
SECTION 2.05. EXECUTION OF DEBT SECURITIES. The Debt
Securities shall be signed on behalf of the Issuer by both (a) the chairman
of its Board of Directors or any vice chairman of its Board of Directors or
its president or any managing director and (b) its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate
seal which may, but need not, be attested. Such signatures may be the manual
or facsimile signatures of any such officers. The seal of the Issuer may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Debt Securities. Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of any Debt Security that has
been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Debt Securities shall cease to be such officer before the Debt Security so
signed shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Debt Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Debt Security had not ceased to
be such officer of the Issuer; and any Debt Security may be signed on behalf of
the Issuer by such persons as, at the actual date of the execution of such Debt
Security, shall be the proper officers of the Issuer, although at the date of
the execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.06. CERTIFICATE OF AUTHENTICATION. Each Debt
Security shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by the Trustee by the manual signature of
one of its authorized officers, shall be entitled to the
16
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Debt Security executed by the Issuer
shall be conclusive evidence that the Debt Security so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
SECTION 2.07. DENOMINATION AND DATE OF DEBT SECURITIES;
PAYMENTS OF INTEREST. The Debt Securities shall be issuable as registered debt
securities without coupons and in denominations as shall be specified as
contemplated by Section 2.03. In the absence of any such specification with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
The Debt Securities shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee as evidenced
by the execution and authentication thereof.
Each Debt Security shall be dated the date of its
authentication, shall bear interest, if any, from such date and shall be payable
on the dates, in each case, which shall be specified as contemplated by Section
2.03.
The person in whose name any Debt Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Debt Security
subsequent to the record date and prior to such interest payment date, except if
and to the extent the Issuer shall default in the payment of the interest due on
such interest payment date for such series, in which case such defaulted
interest shall be paid to the persons in whose names outstanding Debt Securities
for such series are registered at the close of business on a subsequent record
17
date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the holders of Debt Securities not less than 15 days
preceding such subsequent record date. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) shall mean the date specified as such in the terms of the Debt
Securities of any particular series, or, if no such date is so specified, if
such interest payment date is the first day of a calendar month, the fifteenth
day of the next preceding calendar month or, if such interest payment date is
the fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.08. REGISTRATION, TRANSFER AND EXCHANGE. The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.02 a register or registers in which, subject to such reasonable
regulations as it may prescribe, it will register, and will register the
transfer of, Debt Securities as provided in this Article. Such register shall be
in written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Subject to Section 2.12, upon due presentation for
registration of transfer of any Debt Security of any series at any such
office or agency to be maintained for the purpose as provided in Section
3.02, the Issuer shall execute and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Debt Security or Debt
Securities of the same series in authorized denominations for a like
aggregate principal amount.
Subject to Section 2.12, any Debt Security or Debt Securities
of any series may be exchanged for a Debt
18
Security or Debt Securities of the same series in other authorized
denominations, in an equal aggregate principal amount. Debt Securities of any
series to be exchanged shall be surrendered at an office or agency to be
maintained by the Issuer for the purpose as provided in Section 3.02, and the
Issuer shall execute and the Trustee shall authenticate and deliver in
exchange therefor the Debt Security or Debt Securities of the same series
which the Debt Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
All Debt Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Debt Securities. No service charge shall
be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Debt Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Debt Securities of such
series to be redeemed, or (b) any Debt Securities selected, called or being
called for redemption except, in the case of any Debt Security where public
notice has been given that such Debt Security is to be redeemed in part, the
portion thereof not so to be redeemed. All Debt Securities issued upon any
transfer or exchange of Debt Securities shall be valid obligations of the
Issuer, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such transfer or exchange.
19
SECTION 2.09. MUTILATED, DEFACED, DESTROYED, LOST AND
STOLEN DEBT SECURITIES. In case any temporary or definitive Debt Security of
any series shall become mutilated, defaced or be destroyed, lost or stolen,
the Issuer in its sole discretion may execute, and upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver, a
new Debt Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Debt
Security, or in lieu of and substitution for the Debt Security so destroyed,
lost or stolen. In every case the applicant for a substitute Debt Security
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
Upon the issuance of any substitute Debt Security, the Issuer
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.
In case any Debt Security which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may instead of issuing a substitute Debt Security,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated or defaced Debt Security), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as any of them may require to
save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their
20
satisfaction of the destruction, loss or theft of such Debt Security and of
the ownership thereof.
Every substitute Debt Security of any series issued
pursuant to the provisions of this Section by virtue of the fact that any
such Debt Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Debt Security shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Debt Securities of such series duly
authenticated and delivered hereunder. All Debt Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced or destroyed, lost or stolen Debt Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. CANCELLATION OF DEBT SECURITIES; DESTRUCTION
THEREOF. All Debt Securities surrendered for payment, redemption, registration
of transfer, for conversion or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee, shall be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Debt Securities shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee shall destroy cancelled
Debt Securities held by it and deliver a certificate of destruction to the
Issuer. If the Issuer shall acquire any of the Debt Securities, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
21
represented by such Debt Securities unless and until the same are delivered to
the Trustee for cancelation.
SECTION 2.11. TEMPORARY DEBT SECURITIES. Pending
the preparation of definitive Debt Securities for any series, the Issuer may
execute and the Trustee shall authenticate and deliver temporary Debt
Securities for such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary
Debt Securities of any series shall be issuable as registered Debt Securities
without coupons, of any authorized denomination, and substantially in the
form of the definitive Debt Securities of such series but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Issuer with the concurrence of
the Trustee. Temporary Debt Securities may contain such reference to any
provisions of this Indenture as may be appropriate. Every temporary Debt
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debt Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Debt Securities of such
series and thereupon temporary Debt Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.02, and
the Trustee shall authenticate and deliver in exchange for such temporary
Debt Securities of such series a like aggregate principal amount of
definitive Debt Securities of the same series of authorized denominations.
Until so exchanged, the temporary Debt Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Debt
Securities of such series.
SECTION 2.12. DEBT SECURITIES ISSUABLE IN THE FORM OF A
REGISTERED GLOBAL SECURITY. (a) If the Issuer shall establish pursuant to
Section 2.03 that the Debt
22
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Article Two, authenticate and deliver, one or more
Registered Global Securities which (i) shall represent, and shall be
denominated in an amount equal to, the aggregate principal amount of all of
the Debt Securities of such series, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided
in Section 2.12 of the Indenture, this Registered Global Security may be
transferred, in whole but not in part, by the Depositary 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 or to a nominee of such successor Depositary. Unless
this Registered Global Security is presented by an authorized representative
of the Depositary to the Issuer or its agent for registration of transfer,
exchange or payment, and, in the case of any transfer or exchange, any
Registered Global Security issued in exchange therefor is registered in the
name of the Depositary or such other name as requested by an authorized
representative of the Depositary and, in the case of any payment, such
payment is made to the Depositary or the Depositary's nominee, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof has an interest herein."
(b) Notwithstanding any other provision of this Section 2.12
or of Section 2.08, the Registered Global Securities may be transferred, in
whole but not in part and in the manner provided in Section 2.08, by the
Depositary 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
23
successor Depositary selected or approved by the Issuer or to a nominee of
such successor Depositary.
(c) The Depositary shall be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
(d) If at any time the Depositary notifies the Issuer that
it is unwilling or unable to continue as Depositary for such series or if at
any time the Depositary for such series shall no longer be eligible under
paragraph (c) of this Section 2.12, and a successor Depositary is not
appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such condition, as the case may be, this Section 2.12
shall no longer be applicable to the Debt Securities of such series and the
Issuer will execute, and the Trustee will authenticate and deliver, Debt
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Registered Global Securities of such series then
outstanding in exchange for such Registered Global Securities. In addition,
the Issuer may at any time and in its sole discretion determine that the Debt
Securities of any series shall no longer be represented by Registered Global
Securities and that the provisions of this Section 2.12 shall no longer apply
to the Debt Securities of such series. In such event the Issuer will execute,
and the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Issuer, will authenticate and deliver, Debt Securities
of such series in definitive registered form without coupons, in authorized
denominations and in an aggregate principal amount equal to the principal
amount of the Registered Global Securities of such series then outstanding in
exchange for such Registered Global Securities. Upon the exchange of the
Registered Global Securities for such Debt Securities in definitive
registered form without coupons, in authorized denominations, such Registered
Global Securities shall be canceled by the
24
Trustee. Such Debt Securities in definitive registered form issued in
exchange for the Registered Global Securities pursuant to this Section
2.12(d) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
(e) As long as the Outstanding Debt Securities of any series
are represented by one or more Registered Global Securities, the Issuer shall
pay or cause to be paid the principal of, and interest on, such Registered
Global Securities to the registered holders thereof, or to such Persons as the
registered holders thereof may designate, by wire transfer of immediately
available funds on the date such payments are due.
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.01. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
will duly and punctually pay or cause to be paid the principal of, and interest
on, the Debt Securities of each series at the place or places, at the respective
times and in the manner provided in such Debt Securities. Subject to Section
2.12(e), each instalment of interest on the Debt Securities of any series may be
paid by mailing checks for such interest payable to or upon the written order of
the holders of Debt Securities entitled thereto as they shall appear on the
registry books of the Issuer.
SECTION 3.02. OFFICES FOR PAYMENTS, ETC. So long as any of
the Debt Securities remain outstanding, the Issuer will maintain in the
Borough of Manhattan, the City of New York, the following for each series: an
office or agency (a) where the Debt Securities may be presented for payment,
25
(b) where the Debt Securities may be presented for registration of transfer
and for exchange as in this Indenture provided and (c) where notices and
demands to or upon the Issuer in respect of the Debt Securities or of this
Indenture may be served. The Issuer will give to the Trustee written notice
of the location of any such office or agency and of any change of location
thereof. Unless otherwise specified in accordance with Section 2.03, the
Issuer hereby initially designates the Trustee's office at 40 Broad Street,
Suite 550, New York, NY 10004, as the office to be maintained by it for each
such purpose. In case the Issuer shall fail to so designate or maintain any
such office or agency or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office.
SECTION 3.03. APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of Debt
Securities hereunder.
SECTION 3.04. PAYING AGENTS. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Debt Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Debt Securities
of such series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Debt Securities of such series) in trust
for the benefit of the holders of the Debt Securities of such series or
of the Trustee; and
26
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Debt Securities of such series)
to make any payment of the principal of or interest on the Debt
Securities of such series when the same shall be due and payable.
The Issuer will, on or prior to each due date of the principal
of or interest on the Debt Securities of such series, deposit with the paying
agent a sum sufficient to pay such principal or interest so becoming due, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Debt Securities of any series, it will, on or before each due date of the
principal of or interest on the Debt Securities of such series, set aside,
segregate and hold in trust for the benefit of the holders of the Debt
Securities of such series a sum sufficient to pay such principal or interest so
becoming due. The Issuer will promptly notify the Trustee of any failure to take
such action.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Debt Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon
the trusts herein contained; and, upon such payment by any paying agent to the
Trustee, such paying agent shall be released from all further liability with
respect to such monies.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.03 and 10.04.
27
SECTION 3.05. WRITTEN STATEMENT TO TRUSTEE. The Issuer
will deliver to the Trustee on or before May 1 in each year (beginning with
May 1, 1998) a written statement, signed by two of its officers (which need
not comply with Section 11.05), stating that in the course of the performance
of their duties as officers of the Issuer they would normally have knowledge
of any default by the Issuer in the performance or fulfillment of any
covenant, agreement or condition contained in this Indenture, stating whether
or not they have knowledge of any such default and, if so, specifying each
such default of which the signers have knowledge and the nature thereof.
SECTION 3.06. LIMITATIONS ON LIENS. So long as Debt
Securities are outstanding, the Issuer will not, and will not permit any
Subsidiary to, directly or indirectly, create, issue, assume, incur or
guarantee any indebtedness for borrowed money which is secured by a Mortgage
of any nature on any of the present or future capital stock of any Restricted
Subsidiary (or any company, other than the Issuer, having direct or indirect
control of any Restricted Subsidiary) unless the Debt Securities then
Outstanding and, if the Issuer so elects, any other indebtedness of the
Issuer ranking at least PARI PASSU with the Debt Securities, shall be secured
equally and ratably with, or prior to, such other secured debt so long as it
is outstanding.
SECTION 3.07. LIMITATIONS ON DISPOSITION OF STOCK OF
RESTRICTED SUBSIDIARIES. So long as Debt Securities are outstanding, the Issuer
will not, and will not permit any Subsidiary to, sell, transfer or otherwise
dispose of any shares of capital stock of any Restricted Subsidiary except for:
(a) a sale, transfer or other disposition of any capital stock
of any Restricted Subsidiary to a wholly owned Subsidiary of the Issuer
or such Subsidiary;
28
(b) a sale, transfer or other disposition of the entire
capital stock of any Restricted Subsidiary for at least fair value (as
determined by the Board of Directors of the Issuer acting in good
faith); or
(c) a sale, transfer or other disposition of the capital stock
of any Restricted Subsidiary for at least fair value (as determined by
the Board of Directors of the Issuer acting in good faith) if, after
giving effect thereto, the Issuer and its Subsidiaries would own more
than 80% of the issued and outstanding Voting Stock of such Restricted
Subsidiary.
SECTION 3.08. CORPORATE EXISTENCE. The Issuer will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
SECTION 3.09. WAIVER OF CERTAIN COVENANTS. The Issuer
may omit in respect of the Debt Securities, in any particular instance, to
comply with any covenants or conditions set forth in Sections 3.06, 3.07 and
3.08, if before or after the time for such compliance the Holders of at least
a majority of the Outstanding Debt Securities of all series (voting as a
class) either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent expressly
waived, and, until such waiver shall become effective, the obligations of the
Issuer and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE IV
DEBT SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.01. ISSUER TO FURNISH TRUSTEE INFORMATION AS TO
NAMES AND ADDRESSES OF DEBT
29
SECURITYHOLDERS. (a) The Issuer covenants and agrees that it will furnish or
cause to be furnished to the Trustee a list in such form as the Trustee may
reasonably require of the names and addresses of the holders of the Debt
Securities of each series:
(i) semiannually and not more than 15 days after each record
date for the payment of interest on such Debt Securities, as
hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.03 for non-interest bearing securities
in each year; and
(ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request
as of a date not more than 15 days prior to the time such information
is furnished, PROVIDED that if and so long as the Trustee shall be the
Debt Security registrar for such series, such list shall not be
required to be furnished.
(b) The Issuer hereby appoints the Trustee as Debt Security
Registrar and the Trustee hereby consents to such appointment for each series of
Debt Securities to be issued hereunder.
SECTION 4.02. PRESERVATION AND DISCLOSURE OF DEBT
SECURITYHOLDERS' LISTS. (a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of the
holders of each series of Debt Securities contained in the most recent list
furnished to it as provided in Section 4.01 or maintained by the Trustee in its
capacity as Debt Security registrar for such series, if so acting. The Trustee
may destroy any list furnished to it as provided in Section 4.01 upon receipt of
a new list so furnished.
(b) In case three or more holders of Debt Securities
(hereinafter referred to as "applicants") apply
30
in writing to the Trustee and furnish to the Trustee reasonable proof that
each such applicant has owned a Debt Security for a period of at least six
months preceding the date of such application, and such application states
that the applicants desire to communicate with other holders of Debt
Securities of a particular series (in which case the applicants must all hold
Debt Securities of such series) or with Holders of all Debt Securities with
respect to their rights under this Indenture or under such Debt Securities
and such application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at
its election, either:
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number of
holders of Debt Securities of such series or all Debt Securities, as
the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the provisions
of subsection (a) of this Section, and as to the approximate cost of
mailing to such Debt Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Debt Securityholder of such series or all Debt
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section a copy of the form of proxy or
other communication which is specified in such request, with reasonable
31
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the holders
of Debt Securities of such series or all Debt 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 Debt
Securityholders with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Debt Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the Issuer
nor the Trustee nor any agent of the Issuer or 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 Debt Securities in accordance with the
provisions of subsection (b) of this Section, 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
such subsection (b).
SECTION 4.03. REPORTS BY THE ISSUER. The Issuer
covenants:
32
(a) to file with the Trustee, within 15 days after the Issuer
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 Issuer may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, but if the Issuer
is not required to file information, documents, or reports pursuant to
either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, or in respect of a
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents, and reports with
respect to compliance by the Issuer with the conditions and covenants
provided for in this Indenture as may be required from time to time by
such rules and regulations; and
(c) to transmit by mail to the holders of Debt Securities,
within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be
filed by the Issuer pursuant to subsections (a) and (b) of this Section
as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission.
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SECTION 4.04. REPORTS BY THE TRUSTEE. (a) To the extent
required by the Trust Indenture Act of 1939, as such act may be amended or
restated on or after the date hereof, on or before May 1 in each year
following the date hereof, beginning May 1, 1998, so long as any Debt
Securities are outstanding hereunder, the Trustee shall transmit by mail as
provided below to the Debt Securityholders of each series, as hereinafter in
this Section provided, a brief report dated as of a date convenient to the
Trustee no more than 60 nor less than 45 days prior thereto with respect to:
(i) its eligibility under Section 6.09 and its qualification
under Section 6.08 or, in lieu thereof, if to the best of its knowledge
it has continued to be eligible and qualified under such Sections, a
written statement to such effect;
(ii) the character and amount of any advances and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debt Securities of any
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Debt Securities of any
series Outstanding on the date of such report;
(iii) the amount, interest rate, and maturity date of all
other indebtedness owing by the Issuer (or by any other obligor on the
Debt Securities) to the Trustee in its individual capacity on the date
of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b) (2), (3), (4) or (6);
34
(iv) the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(v) any additional issue of securities which the Trustee
has not previously reported; and
(vi) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Debt Securities, except
action in respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section 5.11.
(b) To the extent required by the Trust Indenture Act of
1939, as such act may be amended or restated on or after the date hereof, the
Trustee shall transmit to the Debt Securityholders of each series, as
provided in subsection (c) of this Section, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee,
as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such report has yet
been so transmitted, since the date of this Indenture) for the reimbursement
of which it claims or may claim a lien or charge prior to that of the Debt
Securities of such series on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of Debt Securities of such series outstanding at
such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail to all registered holders of Debt
35
Securities, as the names and addresses of such holders appear upon the
registry books of the Issuer.
(d) A copy of each such report shall, at the time of such
transmission to Debt Securityholders, be furnished to the Issuer and be filed by
the Trustee with each stock exchange upon which the Debt Securities of any
applicable series are listed and also with the Commission. The Issuer agrees to
notify the Trustee with respect to any series when and as the Debt Securities of
such series become admitted to trading on any national securities exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND DEBT SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. EVENT OF DEFAULT DEFINED; ACCELERATION OF
MATURITY; WAIVER OF DEFAULT. "EVENT OF DEFAULT" with respect to Debt Securities
of any series wherever used herein, means any one of the following events which
shall have occurred and be continuing (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):
(a) default in the payment of any instalment of interest upon
any of the Debt Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of
30 days; or
(b) default in the payment of all or any part of the principal
on any of the Debt Securities of such series as and when the same shall
become due and payable either at maturity, upon any redemption, by
declaration or otherwise; or
36
(c) default in the payment of any sinking fund instalment as
and when the same shall become due and payable by the terms of the Debt
Securities of such series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Issuer in respect of the Debt Securities of such series
(other than a covenant or warranty in respect of the Debt Securities of
such series a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) failure by the Issuer to make any payment at maturity,
including any applicable grace period, in respect of indebtedness,
which term as used herein means obligations (other than the Debt
Securities of such series or non-recourse obligations) of, or
guaranteed or assumed by, the Issuer for borrowed monies or evidenced
by bonds, debentures, notes or other similar instruments
("Indebtedness"), in an amount in excess of $10,000,000 or the
equivalent thereof in any other currency or composite currency and such
failure shall have continued for a period of 10 days after written
notice thereof shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the
Issuer and the Trustee by the holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities (treated as one
class) and stating that such notice is a "Notice of Default" hereunder;
or
37
(f) default by the Issuer with respect to any Indebtedness,
which default results in the acceleration of Indebtedness in an amount
in excess of $10,000,000 or the equivalent thereof in any other
currency or composite currency without such Indebtedness having been
discharged or such acceleration having been incurred, waived,
rescinded or annulled for a period of 10 days after written notice
thereof shall have been given by registered or certified mail, return
receipt requested, to the Issuer by the Trustee, or to the Issuer and
the Trustee by the holders of not less than 25% in aggregate principal
amount of the outstanding Debentures (treated as one class) and
stating that such notice is a "Notice of Default" hereunder; or
(g) entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Issuer or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law if not dismissed within 30 days; or
(h) commencement by the Issuer or any Restricted Subsidiary of
a voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law; or
(i) any other Event of Default provided in the supplemental
indenture or resolution of the Board of Directors under which such
series of Debt Securities is issued or in the form of Debt Security for
such series.
If an Event of Default described in clauses (a), (b) or (c)
above occurs and is continuing, then, and in each and every such case, unless
the principal of all of the Debt Securities of such series shall have already
become due and payable, either the Trustee or the holders of not less than
38
25% in aggregate principal amount of the Debt Securities of such series then
Outstanding hereunder (each such series voting as a separate class) by notice
in writing to the Issuer (and to the Trustee if given by Debt
Securityholders), may declare the entire principal (or, if the Debt
Securities of such series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of such
series) of all Debt Securities of such series and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable, provided that
the payment of principal and interest on such Debt Securities shall remain
subordinated to the extent provided in Article Fourteen. If an Event of
Default described in clause (d) above (if such Event of Default is with
respect to less than all series of Debt Securities then Outstanding) occurs
and is continuing, then, and in each and every such case, unless the
principal of all of the Debt Securities of such series shall have already
become due and payable, either the Trustee or the holders of not less than
25% of the aggregate principal amount of the Debt Securities of all such
affected series then outstanding hereunder (voting as a single class) by
notice in writing to the Issuer (and to the Trustee if given by Debt
Securityholders), may declare the entire principal (or, if the Debt
Securities of any such series are Original Issue Discount Debt Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all Debt Securities of all such affected series and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable, provided that
the payment of principal and interest on such Debt Securities shall remain
subordinated to the extent provided in Article Fourteen. If an Event of
Default described in clause (d) (if the Event of Default under clause (d) is
with respect to all series of Debt Securities then outstanding), (e), (f),
(g) or (h) occurs and is continuing, then and in each and every such case,
unless the principal of all the Debt
39
Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Debt Securities then Outstanding hereunder (treated as one class), by notice
in writing to the Issuer (and to the Trustee if given by Debt
Securityholders), may declare the entire principal (or, if any Debt
Securities are Original Issue Discount Debt Securities, such portion of the
principal as may be specified in the terms thereof) of all the Debt
Securities then outstanding and interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Debt
Securities are Original Issue Discount Debt Securities, such portion of the
principal as may be specified in the terms thereof) of the Debt Securities of
any series (or of all the Debt Securities, as the case may be) shall have
been so declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured instalments of interest upon all the Debt
Securities of such series (or of all the Debt Securities, as the case may be)
and the principal of any and all Debt Securities of such series (or of all
the Debt Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue instalments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Debt Securities)
specified in the Debt Securities of such series (or at the respective rates
of interest or Yields to Maturity of all the Debt Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other
40
expenses and liabilities incurred, and all advances made, by the Trustee
except as a result of negligence or bad faith, and if any and all Events of
Default under the Indenture, other than the non-payment of the principal of
Debt Securities which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein -- then and in every
such case (i) with respect to an Event of Default described in clauses (a),
(b) and (c) above, the holders of a majority in aggregate principal amount of
the Debt Securities of such series, voting as a separate class, then
outstanding, by written notice to the Issuer and to the Trustee, may waive
all defaults with respect to such series and rescind and annul such
declaration and its consequences, (ii) with respect to an Event of Default
described in clause (d) above (if such Event of Default is with respect to
less than all series of Debt Securities then Outstanding), the holders of a
majority in aggregate principal amount of the Debt Securities of all such
affected series (voting as a single class) then Outstanding, by written
notice to the Issuer and to the Trustee, may waive all such defaults with
respect to all such affected series and rescind and annul such declaration
and its consequences and (iii) with respect to an Event of Default described
in clauses (d) (if such Event of Default is with respect to all Series of
Debt Securities then Outstanding), (e), (f) and (g), the holders of a
majority in aggregate principal amount of the Debt Securities of all series
(voting as a single class) then Outstanding by written notice to the Issuer
and to the Trustee, may waive all such defaults with respect to all the Debt
Securities then Outstanding and rescind and annul such declaration and its
consequences. No such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Debt Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and
41
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Debt
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall
be due and payable as a result of such acceleration, together with interest,
if any, thereon and all other amounts owing thereunder, shall constitute
payment in full of such Original Issue Discount Debt Securities.
SECTION 5.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE
MAY PROVE DEBT. The Issuer covenants that (a) in case default shall be made in
the payment of any instalment of interest on any of the Debt Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the Debt
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Debt Securities of such series or upon any
redemption or by declaration or otherwise--then upon demand of the Trustee, the
Issuer will pay to the Trustee for the benefit of the Holders of the Debt
Securities of such series the whole amount that then shall have become due and
payable on all Debt Securities of such series for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount Debt
Securities) specified in the Debt Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee
and each predecessor Trustee, their respective agents, attorneys and counsel,
and any expenses and liabilities incurred, and all advances made, by the Trustee
and each
42
predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Debt Securities of any series to the
registered holders, whether or not the principal of and interest on the Debt
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Debt Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Debt Securities, wherever
situated, the monies adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Debt Securities under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Debt Securities of any series,
or to the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of any Debt 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 pursuant to
43
the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Debt Securities of any series are
Original Issue Discount Debt Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Debt Securities of any series, 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
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence or bad faith) and of the Debt Securityholders
allowed in any judicial proceedings relative to the Issuer or other
obligor upon the Debt Securities of any series, or to the creditors
or property of the Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Debt Securities of any series in
any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings; and
(c) to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Debt Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Debt Securityholders
44
to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the Debt
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.06.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Debt Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Debt Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Debt Securityholder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Debt Securities, may be enforced by the Trustee
without the possession of any of the Debt Securities or the production thereof
on any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the holders of the Debt Securities in respect of which such
action was taken.
45
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Debt Securities in respect to which such action was taken,
and it shall not be necessary to make any holders of such Debt Securities
parties to any such proceedings.
SECTION 5.03. APPLICATION OF PROCEEDS. Any monies collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such monies on account of principal or interest, upon
presentation of the several Debt Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Debt Securities of such series in reduced principal amounts in exchange for the
presented Debt Securities of like series if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.06;
SECOND: In case the principal of the Debt Securities of such
series in respect of which monies have been collected shall not have
become and be then due and payable, to the payment of interest on the
Debt Securities of such series in default in the order of the maturity
of the instalments of such interest, with
46
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue instalments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Debt Securities) specified in such Debt Securities,
such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Debt Securities of such
series in respect of which monies have been collected shall have become
and shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Debt Securities of such series for
principal and interest, with interest upon the overdue principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity in the case of Original Issue Discount
Debt Securities) specified in the Debt Securities of such series; and
in case such monies shall be insufficient to pay in full the whole
amount so due and unpaid upon the Debt Securities of such series, then
to the payment of such principal and interest or yield to maturity,
without preference or priority of principal over interest or yield to
maturity, or of interest or yield to maturity over principal, or of any
instalment of interest over any other instalment of interest, or of any
Debt Security of such series over any other Debt Security of such
series, ratably to the aggregate of such principal and accrued and
unpaid interest or yield to maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
SECTION 5.04. SUITS FOR ENFORCEMENT. In case an Event of
Default has occurred, has not been waived and is
47
continuing, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained
in this Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.05. RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Trustee and the Debt Securityholders shall continue as though
no such proceedings had been taken.
SECTION 5.06. LIMITATIONS ON SUITS BY DEBT SECURITYHOLDERS.
No holder of any Debt Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall
have offered to the Trustee such reasonable
48
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute
any such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 5.09; it
being understood and intended, and being expressly covenanted by the taker
and Holder of every Debt Security with every other taker and Holder and the
Trustee, that no one or more Holders of Debt Securities of any series shall
have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Debt Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under
this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Debt Securities of the
applicable series. For the protection and enforcement of the provisions of
this Section, each and every Debt Securityholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 5.07. UNCONDITIONAL RIGHT OF DEBT SECURITYHOLDERS TO
INSTITUTE CERTAIN SUITS. Notwithstanding any other provision in this Indenture
and any provision of any Debt Security, the right of any Holder of any Debt
Security to receive payment of the principal of and interest on such Debt
Security on or after the respective due dates expressed in such Debt Security,
or to institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the consent of such
Holder.
SECTION 5.08. POWERS AND REMEDIES CUMULATIVE; DELAY OR
OMISSION NOT WAIVER OF DEFAULT. Except as provided in Section 5.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Debt
Securityholders is intended to be exclusive of any other right or remedy, and
49
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Debt
Securityholder to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Debt Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Debt Securityholders.
SECTION 5.09. CONTROL BY DEBT SECURITYHOLDERS. The Holders of
a majority in aggregate principal amount of the Debt Securities of each series
affected (with each series voting as a separate class) at the time outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Debt Securities of such
series by this Indenture; provided that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture and provided
further that (subject to the provisions of Sections 6.01 and 6.02) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, the executive committee, or a trust committee of directors or
responsible officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good
50
faith shall so determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Debt Securities of all series so affected not joining in the
giving of said direction, it being understood that (subject to Sections 6.01
and 6.02) the Trustee shall have no duty to ascertain whether or not such
actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Debt
Securityholders.
SECTION 5.10. WAIVER OF PAST DEFAULTS. Prior to the
declaration of the acceleration of the maturity of the Debt Securities of any
series as provided in Section 5.01, the Holders of a majority in aggregate
principal amount of the Debt Securities of such series at the time
Outstanding may on behalf of the Holders of all the Debt Securities of such
series waive any past default or Event of Default described in clause (c) of
Section 5.01 (or, in the case of an Event of Default specified in clause (d)
of Section 5.01 which relates to less than all series of Debt Securities then
Outstanding, the Holders of a majority in aggregate principal amount of the
Debt Securities then Outstanding affected thereby (voting as single class))
may waive any such default or Event of Default, or, in the case of an Event
of Default specified in clause (d) (if the Event of Default under clause (d)
relates to all series of Debt Securities then outstanding), (e), (f), (g) or
(h) of Section 5.01 the Holders of Debt Securities of a majority in principal
amount of all the Debt Securities then Outstanding (voting as one class) may
waive any such default or Event of Default, and its consequences, except a
default in respect of a covenant or provision hereof which cannot be modified
or amended without the consent of the Holder of each Debt Security affected.
In the case of any such waiver, the Issuer, the Trustee and the Holders of
the Debt Securities
51
of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall transmit to the Debt
Securityholders of any series, as the names and addresses of such Holders
appear on the registry books, notice by mail of all defaults which have
occurred with respect to such series, such notice to be transmitted within 90
days after the occurrence thereof, unless such defaults shall have been cured
before the giving of such notice (the term "default" or "defaults" for the
purposes of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); PROVIDED that, except in the case of default in the payment of the
principal of or interest on any of the Debt Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of
directors or trustees and/or responsible officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of
the Debt Securityholders of such series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING
TO PAY COSTS. All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
52
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Debt Securityholder or group of Debt Securityholders of any
series holding in the aggregate more than 10% in aggregate principal amount
of the Debt Securities of such series, or, in the case of any suit relating
to or arising under clause (d) of Section 5.01 (if the suit relates to Debt
Securities of more than one but less than all series), 10% in aggregate
principal amount of Debt Securities outstanding affected thereby, or in the
case of any suit relating to or arising under clause (d) (if the suit under
clause (d) relates to all the Debt Securities then outstanding), (e), (f),
(g) or (h) of Section 5.01, 10% in aggregate principal amount of all Debt
Securities Outstanding, or to any suit instituted by any Debt Securityholder
for the enforcement of the payment of the principal of or interest on any
Debt Security on or after the due date expressed in such Debt Security.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Debt Securities issued hereunder, the Trustee, prior to the occurrence of an
Event of Default with respect to the Debt Securities of a particular series and
after the curing or waiving of all
53
Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. In case an Event of Default with respect to the
Debt Securities of a series has occurred (which has not been cured or waived)
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
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 wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Debt Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series which
may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Debt Securities of any Series shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of
54
any such statements, certificates 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 to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.09 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.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 6.02. CERTAIN RIGHTS OF THE TRUSTEE.
Subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon,
55
security, or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or
opinion of counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith in reliance on such advice or
opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Debt Securityholders pursuant to the
provisions of this Indenture, unless such Debt Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
56
opinion, report, notice, request, consent, order, approval, appraisal,
bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the holders of not less than a
majority in aggregate principal amount of the Debt Securities of all
series affected then Outstanding; PROVIDED that, if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Issuer upon demand;
and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
SECTION 6.03. TRUSTEE NOT RESPONSIBLE FOR RECITALS,
DISPOSITION OF DEBT SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals
contained herein and in the Debt Securities, except the Trustee's certificates
of authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this Indenture or
of the Debt Securities. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Debt Securities or of the proceeds
thereof.
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SECTION 6.04. TRUSTEE AND AGENTS MAY HOLD DEBT SECURITIES;
COLLECTIONS, ETC. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities with the same rights it would have if it were not the Trustee or such
agent and, subject to Sections 6.08 and 6.13, if operative, may otherwise deal
with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 6.05. MONIES HELD BY TRUSTEE. Subject to the
provisions of Section 10.04 hereof, all monies received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest on
any monies received by it hereunder.
SECTION 6.06. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND
ITS PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad
58
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. Such additional indebtedness shall be a senior claim to that
of the Debt Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Debt Securities, and the Debt Securities are hereby subordinated
to such senior claim.
SECTION 6.07. RIGHT OF TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC. Subject to Sections 6.01 and 6.02, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 6.08. QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as defined in
this Section, it shall, within 90 days after ascertaining that it has such
conflicting interest, either eliminate such
59
conflicting interest or resign in the manner and with the effect specified in
this Indenture.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section, the Trustee shall, within 10
days after the expiration of such 90-day period, transmit by mail notice of such
failure to the Debt Securityholders at their last addresses as they appear on
the Debt Security register.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to Debt Securities of any
series if:
(i) the Trustee is trustee under this Indenture with
respect to the outstanding Debt Securities of any other series
or is a trustee under another indenture under which any other
securities, or certificates of interest or participation in
any other securities, of the Issuer are outstanding, unless
such other indenture is a collateral trust indenture under
which the only collateral consists of Debt Securities issued
under this Indenture and this Indenture with respect to the
Debt Securities of any other series and there shall also be so
excluded any other indenture or indentures under which other
securities, or certificates of interest or participation in
other securities, of the Issuer are outstanding if (x) this
Indenture is and, if applicable, this Indenture and any series
issued pursuant to this Indenture and such other indenture or
indentures are wholly unsecured, and such other indenture or
indentures are hereafter qualified under the Trust Indenture
Act of 1939, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c)
of such Trust Indenture Act of 1939 that differences exist
60
between the provisions of this Indenture with respect to Debt
Securities of such series and one or more other series, or the
provisions of this Indenture and the provisions of such other
indenture or indentures which are so likely to involve a
material conflict of interest as to make it necessary in the
public interest or for the protection of investors to
disqualify the Trustee from acting as such under this
Indenture with respect to Debt Securities of such series and
such other series, or under this Indenture or such other
indenture or indentures, or (y) the Issuer shall have
sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to Debt
Securities of such series and such other series, or under this
Indenture and such other indenture or indentures is not so
likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to Debt Securities of such series
and such other series, or under this Indenture and such other
indentures;
(ii) the Trustee or any of its directors or executive
officers is an obligor upon the Debt Securities of any series
issued under this Indenture or an underwriter for the Issuer;
(iii) the Trustee directly or indirectly controls or
is directly or indirectly controlled by or is under direct or
indirect common control with the Issuer or an underwriter for
the Issuer;
(iv) the Trustee or any of its directors or executive
officers is a director, officer,
61
partner, employee, appointee, or representative of the Issuer,
or of an underwriter (other than the Trustee itself) for the
Issuer who is currently engaged in the business of
underwriting, except that (x) one individual may be a director
or an executive officer, or both, of the Trustee and a
director or an executive officer, or both, of the Issuer, but
may not be at the same time an executive officer of both the
Trustee and the Issuer; (y) if and so long as the number of
directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Issuer;
and (z) the Trustee may be designated by the Issuer or by any
underwriter for the Issuer to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent,
escrow agent, or depositary, or in any other similar capacity,
or, subject to the provisions of subsection (c)(i) of this
Section, to act as trustee, whether under an indenture or
otherwise;
(v) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Issuer or by any
director, partner or executive officer thereof, or 20% or more
of such voting securities is beneficially owned, collectively,
by any two or more of such persons; or 10% or more of the
voting securities of the Trustee is beneficially owned either
by an underwriter for the Issuer or by any director, partner,
or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default,
(x) 5% or more of the voting
62
securities or 10% or more of any other class of security of
the Issuer, not including the Debt Securities issued under
this Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (y) 10% or more of
any class of security of an underwriter for the Issuer;
(vii) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default, 5% or more of the voting securities of any person
who, to the knowledge of the Trustee, owns 10% or more of the
voting securities of, or controls directly or indirectly or
is under direct or indirect common control with, the Issuer;
(viii) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default, 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the
voting securities of the Issuer; or
(ix) the Trustee owns on May 15 in any calendar year,
in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or in
any other similar capacity, an aggregate of 25% or more of the
voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under
subsections (c)(vi), (vii) or (viii) of this Section. As to
any such securities of which the Trustee acquired ownership
through becoming executor, administrator, or testamentary
trustee of an estate which included them, the provisions of
the preceding sentence shall not apply, for a
63
period of two years from the date of such acquisition, to the
extent that such securities included in such estate do not
exceed 25% of such voting securities or 25% of any such class
of security. Promptly after May 15 in each calendar year, the
Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such May 15. If
the Issuer fails to make payment in full of principal of or
interest on any of the Debt Securities when and as the same
becomes due and payable, and such failure continues for 30
days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by
the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the
Trustee for the purposes of subsections (c)(vi), (vii) and
(viii) of this Section.
The specification of percentages in subsections (c)(v) to (ix)
inclusive of this Section shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of subsections (c)(iii) or (vii) of this Section.
For the purposes of subsections (c)(vi), (vii), (viii) and
(ix) of this Section only:
(A) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but
shall not include any note or
64
other evidence of indebtedness issued to evidence an obligation to
repay monies lent to a person by one or more banks, trust companies,
or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness;
(B) an obligation shall be deemed to be in default when a
default in payment of principal shall have continued for 30 days or
more and shall not have been cured; and
(C) the Trustee shall not be deemed to be the owner or holder
of (x) any security which it holds as collateral security, as trustee
or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (y) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder,
or (z) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar
representative capacity.
Except as provided above, the word "security" or
"securities" as used in this Section shall mean any note, stock, treasury
stock, bond, debenture, evidence of indebtedness, certificate of interest or
participation in any profit sharing agreement, collateral trust certificate,
reorganization certificate or subscription, transferable share, investment
contract, voting trust certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas or other mineral rights, or, in
general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
65
(d) For purposes of this Section:
(i) the term "underwriter" when used with reference
to the Issuer shall mean every person who, within three years
prior to the time as of which the determination is made, has
purchased from the Issuer with a view to, or has offered or
sold for the Issuer in connection with, the distribution of
any security of the Issuer outstanding at such time, or has
participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person
whose interest was limited to a commission from an underwriter
or dealer not in excess of the usual and customary
distributors' or sellers' commission;
(ii) the term "director" shall mean any director of a
corporation or any individual performing similar functions
with respect to any organization whether incorporated or
unincorporated;
(iii) the term "person" shall mean any individual,
corporation, partnership, association, joint-stock company,
trust, unincorporated organization, or government or any
agency or political subdivision thereof; as used in this
paragraph, the term "trust" shall include only a trust where
the interest or interests of the beneficiary or beneficiaries
are evidenced by a security;
(iv) the term "voting security" shall mean any
security presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of a
person, or any
66
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently
entitled to vote in the direction or management of the
affairs of a person;
(v) the term "Issuer" shall mean any obligor
upon the Debt Securities; and
(vi) the term "executive officer" shall mean the
president, every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(i) a specified percentage of the voting securities
of the Trustee, the Issuer or any other person referred to in
this Section (each of whom is referred to as a "person" in
this paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the
direction or management of the affairs of such person;
(ii) a specified percentage of a class of securities
of a person means such percentage of
67
the aggregate amount of securities of the class outstanding;
(iii) the term "amount", when used in regard to
securities, means the principal amount if relating to evidence
of indebtedness, the number of shares if relating to capital
shares, and the number of units if relating to any other kind
of security;
(iv) the term "outstanding" means issued and not held
by or for the account of the issuer; the following securities
shall not be deemed outstanding within the meaning of this
definition:
(A) securities of an issuer held in a
sinking fund relating to securities of the issuer
of the same class;
(B) securities of an issuer held in a
sinking fund relating to another class of securities
of the issuer, if the obligation evidenced by such
other class of securities is not in default as to
principal or interest or otherwise;
(C) securities pledged by the issuer thereof
as security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(D) securities held in escrow if placed in
escrow by the issuer thereof;
PROVIDED, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof; and
68
(v) a security shall be deemed to be of the same
class as another security if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; PROVIDED that, in the case of secured evidences of
indebtedness, all of which are issued under a single
indenture, differences in the interest rates or maturity dates
of various series thereof shall not be deemed sufficient to
constitute such series different classes and PROVIDED FURTHER,
that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof
shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a
single indenture.
SECTION 6.09. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee for each series of Debt Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. 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. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
So long as any Debt Securities are outstanding, there shall at all times be a
Trustee hereunder.
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SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series
of Debt Securities by giving written notice of resignation to the Issuer and
by mailing notice thereof by first-class mail to Holders of the applicable
series of Debt Securities at their last addresses as they shall appear on the
Debt Security register. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority
of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee or trustees. If
no successor trustee shall have been so appointed with respect to any series
and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Debt
Securityholder who has been a bona fide Holder of a Debt Security or Debt
Securities of the applicable series for at least six months may, subject to
the provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee,
PROVIDED that for purposes of this Section 6.10, a court in Mecklenburg
County, North Carolina, shall be considered a court of competent
jurisdiction. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) If at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.08 with respect to any series of Debt Securities after
written request therefor by the Issuer or by any Debt Securityholder
who has been a
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bona fide Holder of a Debt Security or Debt Securities of such series
for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign after written
request therefor by the Issuer or by any Debt Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Debt Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Debt Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the President
or the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.12, any Debt Securityholder who has been
a bona fide Holder of a Debt Security or Debt Securities 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. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Debt Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Debt Securities of such series and appoint a
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successor trustee with respect to the Debt Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed and
to the Issuer the evidence provided for in Section 7.01 of the action in that
regard taken by the Debt Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series of Debt Securities and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of this Section 6.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 6.11.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04,
pay over to the successor trustee all monies at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
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If a successor trustee is appointed with respect to the
Debt Securities of one or more (but not all) series, the Issuer, the
predecessor trustee and each successor trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor trustee with respect to the Debt Securities of any
series as to which the predecessor trustee is not retiring shall continue to
be vested in the predecessor trustee, and 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 under separate
indentures.
No successor trustee with respect to any series of Debt
Securities shall accept appointment as provided in this Section 6.11 unless at
the time of such acceptance such successor trustee shall be qualified under the
provisions of Section 6.08 and eligible under the provisions of Section 6.09.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall mail notice thereof by
first-class mail to the Holders of Debt Securities of any series for which such
successor trustee is acting as trustee at their last addresses as they shall
appear in the Debt Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to mail such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
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SECTION 6.12. 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 the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, PROVIDED that such corporation shall be qualified under the
provisions of Section 6.08 and eligible under the provisions of Section 6.09,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Debt Securities of
any series shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Debt Securities so authenticated; and, in case at that
time any of the Debt Securities of any series shall not have been authenticated,
any successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor trustee; and
in all such cases such certificate shall have the full force which it is
anywhere in the Debt Securities of such series or in this Indenture provided
that the certificate of the Trustee shall have; PROVIDED that the right to adopt
the certificate of authentication of any predecessor trustee or to authenticate
Debt Securities of any series in the name of any predecessor trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
ISSUER. (a) Subject to the provisions of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Issuer within four months prior to a default, as defined in
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subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee individually, the Holders
of the Debt Securities and the holders of other indenture securities (as
defined in this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such four months' period
and valid as against the Issuer and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Issuer
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such four
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Issuer and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made
on account of any such claim by any person (other than the
Issuer) who is liable thereon, (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to a third person,
and (iii) distributions made in cash, securities or other
property in respect of claims
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filed against the Issuer in bankruptcy or receivership or
in proceedings for organization pursuant to Title 11 of the
United States Code or applicable state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such four
months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such four months' period and
such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a
default as defined in subsection (c) of this Section would
occur within four months; or
(D) to receive payment on any claim referred
to in paragraph (B) or (C), against the release of
any property held as security for such claim as provided in
such paragraph (B) or (C), as the case may be, to the extent
of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four months' period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
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any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Debt Securityholders and the holders of
other indenture securities in such manner that the Trustee, such Debt
Securityholders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on
claims filed against the Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account of
the receipt by it from the Issuer of the funds and property in such special
account and before crediting to the respective claims of the Trustee, such
Debt Securityholders and the holders of other indenture securities dividends
on claims filed against the Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, but after crediting thereon receipts on account of
the indebtedness represented by their respective claims from all sources
other than from such dividends and from the funds and property so held in
such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State law,
whether such distribution is made in cash, securities or other property, but
shall not include any such distribution with respect to the secured portion,
if any, of such claim. The court in which such bankruptcy, receivership or
proceeding for reorganization is pending shall have jurisdiction (i) to
apportion between the Trustee, such Debt Securityholders and the holders of
other indenture securities, in accordance with the provisions of
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this paragraph, the funds and property held in such special account and the
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part,
to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to the Trustee, such Debt
Securityholders and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held
in such special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of
this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such four months' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such four months'
period, it shall be subject to the provisions of this subsection (a) if and only
if the following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such four months'
period; and
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of this Section
a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or
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securities having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the Debt
Securityholders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(3)
below;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest
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upon any of the Debt Securities or upon any other indenture securities
when and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares
or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Issuer arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon
the Debt Securities.
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ARTICLE VII
CONCERNING THE DEBT SECURITYHOLDERS
SECTION 7.01. EVIDENCE OF ACTION TAKEN BY DEBT
SECURITYHOLDERS. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the Debt
Securityholders of any or all series may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such specified
percentage of Debt Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Article.
SECTION 7.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF
HOLDING OF DEBT SECURITIES. Subject to Sections 6.01 and 6.02, the execution
of any instrument by a Debt Securityholder or his agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The holding of Debt Securities shall be proved by the Debt Security
register or by a certificate of the registrar thereof.
SECTION 7.03. HOLDERS TO BE TREATED AS OWNERS. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Debt Security shall be registered upon the Debt
Security register for such series as the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue and notwithstanding any
notation of ownership or other writing
81
thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on
such Debt Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Debt Security.
SECTION 7.04. DEBT SECURITIES OWNED BY ISSUER DEEMED NOT
OUTSTANDING. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Debt Securities of any or all series have
concurred in any direction, consent or waiver under this Indenture, Debt
Securities which are owned by the Issuer or any other obligor on the Debt
Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Debt
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Debt Securities which the Trustee knows are so owned shall be so disregarded.
Debt Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debt Securities
and that the pledgee is not the Issuer or any other obligor upon the Debt
Securities or any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer or any other
obligor on the Debt Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice.
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Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all Debt Securities, if any,
known by the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 6.01 and 6.02, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Debt Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 7.05. RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any or all series, as the case may
be, specified in this Indenture in connection with such action, any Holder of a
Debt Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Debt Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action taken
by the Holder of any Debt Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Debt Security and of any
Debt Securities issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Debt
Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any or all series, as the case may
be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Debt Securities affected by such action.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
DEBT SECURITYHOLDERS. The Issuer and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Debt
Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of Debt
Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; PROVIDED that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
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enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the
Debt Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Issuer may deem necessary or
desirable and which shall not adversely affect the interests of the
Holders of the Debt Securities;
(e) to establish the form or terms of Debt Securities of any
series as permitted by Sections 2.01 and 2.03, and to provide for the
issuance under this Indenture of Debt Securities in coupon form
(including Debt Securities registrable as to principal only) and to
provide for exchangeability of such Debt Securities with Debt
Securities issued hereunder in fully registered form, and to make all
appropriate changes for such purpose; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture,
85
to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Debt Securities at the time outstanding, notwithstanding any of the
provisions of Section 8.02.
SECTION 8.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF DEBT
SECURITYHOLDERS. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Debt Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer and the Trustee may,
from time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of such
series; provided, that no such supplemental indenture shall (a) extend the final
maturity of any Debt Security, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Debt Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.01 or the amount
thereof provable in bankruptcy pursuant to Section 5.02, or impair or affect the
right of any Debt Securityholder to institute suit for the payment
86
thereof or, if the Debt Securities provide therefor, any right of repayment
at the option of the Debt Securityholder without the consent of the Holder of
each Debt Security so affected or (b) reduce the aforesaid percentage of Debt
Securities of any series, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of the Holders of each
Debt Security so affected.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an
assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Debt Securityholders as aforesaid and other documents, if any,
required by Section 7.01, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Debt
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Issuer shall mail a notice thereof by first class mail to the Holders of Debt
Securities of each series affected thereby at their addresses as they shall
appear on the Debt Security registry books of the Issuer, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Issuer to mail such notice, or any defect therein, shall
87
not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.03. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Debt Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 8.04. DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Indenture.
SECTION 8.05. NOTATION ON DEBT SECURITIES IN RESPECT OF
SUPPLEMENTAL INDENTURES. Notation on Debt Securities in Respect of
Supplemental Indentures. Debt Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article may bear a notation in form approved by the
Trustee for such series as to any matter provided for by such supplemental
indenture or as to any action taken at any such meeting. If the Issuer or the
Trustee shall so determine, new Debt Securities of any series so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Issuer, authenticated by the Trustee
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and delivered in exchange for the Debt Securities of such series then
outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR
CONVEY PROPERTY EXCEPT UNDER CERTAIN CONDITIONS. So long as Debt Securities are
outstanding, the Issuer shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which
the Issuer is merged or which purchases or acquires by conveyance or
transfer, or which leases, the properties and assets of the Issuer as
an entirety or substantially as an entirety, shall be a corporation
organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia;
(b) upon any such consolidation, merger, sale, lease or
conveyance, the due and punctual payment of the principal of, premium,
if any, and interest on all the Debt Securities, according to their
tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed or
observed by the Issuer, shall be expressly assumed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered
to the Trustee, by the corporation formed by such consolidation, or
into which the Issuer shall have been merged, or which shall have
acquired such property; and
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(c) 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 occurred and be
continuing.
SECTION 9.02. SUCCESSOR CORPORATION SUBSTITUTED. In case of
any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein.
Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Debt Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All of the Debt Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Debt
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debt Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Debt Securities thereafter to be issued as may be appropriate.
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In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the Debt
Securities and may be liquidated and dissolved.
SECTION 9.03. OPINION OF COUNSEL TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 10.01. SATISFACTION AND DISCHARGE OF INDENTURE. If at
any time (a) the Issuer shall have paid or caused to be paid the principal of
and interest on all the Debt Securities of any series outstanding hereunder
(other than Debt Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.09) as and when the same
shall have become due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancelation all Debt Securities of any series theretofore
authenticated (other than any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09) or (c) (i) all the Debt Securities of such series not
theretofore delivered to the Trustee for cancelation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under
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arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds the entire amount in cash (other
than monies repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 10.04) or direct obligations of the United States of
America, backed by its full faith and credit, maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity or upon redemption all Debt Securities of
such series (other than any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09) not theretofore delivered to the Trustee for
cancelation, including principal and interest due or to become due to such
date of maturity as the case may be, and if, in any such case, the Issuer
shall also pay or cause to be paid all other sums payable hereunder by the
Issuer with respect to Debt Securities of such series, then this Indenture
shall cease to be of further effect with respect to Debt Securities of such
series (except as to (i) rights of registration of transfer and exchange, and
the Issuer's right of optional redemption, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Debt Securities, (iii) rights of holders
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the holders to receive mandatory sinking fund payments, if any,
(iv) the rights, if any, of holders of Debt Securities to convert or exchange
Debt Securities, (v) the rights, obligations and immunities of the Trustee
hereunder and (vi) the rights of the Debt Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them), and the Trustee, on demand of the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and
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discharging this Indenture with respect to such series; provided that the
rights of Holders of the Debt Securities to receive amounts in respect of
principal of and interest on the Debt Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies
of any securities exchange upon which the Debt Securities are listed. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Debt Securities of such series.
SECTION 10.02. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED
FOR PAYMENT OF DEBT SECURITIES. Subject to Section 10.04, all monies
deposited with the Trustee pursuant to Section 10.01 shall be held in trust
and applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Debt Securities of such series for the payment or redemption of
which such monies have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest; but such monies need not be
segregated from other funds except to the extent required by law.
SECTION 10.03. REPAYMENT OF MONIES HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect to
Debt Securities of any series, all monies then held by any paying agent under
the provisions of this Indenture with respect to such series of Debt Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such monies.
SECTION 10.04. RETURN OF MONIES HELD BY TRUSTEE AND PAYING
AGENT UNCLAIMED FOR THREE YEARS. Any monies deposited with or paid to the
Trustee or any paying agent
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for the payment of the principal of or interest on any Debt Security of any
series and not applied but remaining unclaimed for three years after the date
upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Debt Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Issuer for
any payment which such Holder may be entitled to collect, and all liability
of the Trustee or any paying agent with respect to such monies shall
thereupon cease.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Debt Security, or because of any indebtedness evidenced thereby, shall be
had against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Debt
Securities by the holders thereof and as part of the consideration for the
issue of the Debt Securities.
SECTION 11.02. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND DEBT SECURITYHOLDERS. Nothing in this Indenture or in the Debt
Securities, expressed or
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implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the
Holders of the Debt Securities, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties
hereto and their successors and of the Holders of the Debt Securities.
SECTION 11.03. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 11.04. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND DEBT
SECURITYHOLDERS. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Debt Securities to or on the Issuer may be given or served by being sent by
registered mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Financial Security Assurance Holdings Ltd., 350 Park Avenue, New York, New York
10022, Attention: General Counsel. Any notice, direction, request or demand by
the Issuer or any Debt Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made at the
Corporate Trust Office.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Debt Security register. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder
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shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer and
Debt Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.05. OFFICERS' CERTIFICATE AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or
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condition, (b) 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, (c) a statement that, in the
opinion of such person, 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 (d) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may
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be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.06. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS. If the date of maturity of interest on or principal of the Debt
Securities of any series or the date fixed for redemption or repayment of any
such Debt Security shall not be a Business Day, then payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period
after such date.
SECTION 11.07. CONFLICT OF ANY PROVISION OF INDENTURE WITH
TRUST INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this
Indenture which is required to be included herein by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.08. NEW YORK LAW TO GOVERN. This Indenture and each
Debt Security shall be deemed to be a contract under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.09. 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.
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SECTION 11.10. EFFECT OF HEADINGS. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
ARTICLE XII
REDEMPTION OF DEBT SECURITIES AND SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to the Debt Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Debt Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Debt Securities of such series.
SECTION 12.02. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS.
Notice of redemption to the Holders of Debt Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at least
20 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Debt Securities of such series at their last addresses as they
shall appear upon the registry books. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Debt Security of a series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Debt Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of
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payment, that payment will be made upon presentation and surrender of
such Debt Securities, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, or any other redemption provision as the case
may be, that interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest thereon or on
the portions thereof to be redeemed will cease to accrue. In case any Debt
Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Debt Security, a new Debt Security or Debt Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Debt Securities of any series to
be redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date
specified in the notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying agents (or, if
the Issuer is acting as its own paying agent, set aside, segregate and hold in
trust as provided in Section 3.04) an amount of monies sufficient to redeem on
the redemption date all the Debt Securities of such series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If less than all the outstanding Debt
Securities of a series are to be redeemed, the Issuer will deliver to the
Trustee at least 35 days prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of Debt Securities to be
redeemed.
If less than all the Debt Securities of a series are to be
redeemed, the Trustee shall select, in such manner
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as it shall deem appropriate and fair, Debt Securities of such series to be
redeemed in whole or in part. Debt Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Debt Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Debt Securities of such series selected for
redemption and, in the case of any Debt Securities of such series 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 Debt Securities of any series shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 12.03. PAYMENT OF DEBT SECURITIES CALLED FOR
REDEMPTION. If notice of redemption has been given as above provided, the
Debt Securities or portions of Debt Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at
the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Issuer shall
default in the payment of such Debt Securities at the redemption price,
together with interest accrued to said date) interest on the Debt Securities
or portions of Debt Securities so called for redemption shall cease to accrue
and, except as provided in Sections 6.05 and 10.04, such Debt Securities
shall cease from and after the date fixed for redemption to be entitled to
any benefit or security under this Indenture, and the Holders thereof shall
have no right in respect of such Debt Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Debt Securities at a place
of payment specified in said notice, said Debt Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with interest accrued thereon to
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the date fixed for redemption; provided that any semiannual payment of
interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Debt Securities registered as such on the relevant record
date subject to the terms and provisions of Section 2.04 hereof.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue Discount Debt
Security) borne by the Debt Security.
Upon presentation of any Debt Security redeemed in part only,
the Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Debt
Security or Debt Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 12.04. EXCLUSION OF CERTAIN DEBT SECURITIES FROM
ELIGIBILITY FOR SELECTION FOR REDEMPTION. Debt Securities shall be excluded from
eligibility for selection for redemption if they are identified by registration
and certificate number in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last date
on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Issuer or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or under direct or indirect common control with the
Issuer.
SECTION 12.05. MANDATORY AND OPTIONAL SINKING FUNDS. The
minimum amount of any sinking fund payment provided for by the terms of Debt
Securities of any series is herein referred to as a "mandatory sinking fund
payment",
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and any payment in excess of such minimum amount provided for by the terms of
Debt Securities of any series is herein referred to as an "optional sinking
fund payment". The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Debt Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Debt Securities of such
series theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit for
Debt Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, (c) receive credit for Debt
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such
series, or (d) receive credit for Debt Securities which have been converted
or exchanged. Debt Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in
such Debt Securities.
On or before the forty-fifth day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the Trustee a
written statement (which need not contain the statements required by Section
11.05) signed by an authorized officer of the Issuer (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Debt Securities of such series, (b) stating
that none of the Debt Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or
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cured) and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund
payment date.
With respect to any sinking fund payment date, any Debt
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee on or
prior to the thirty-fifth day preceding such sinking fund payment date (or
reasonably promptly thereafter if acceptable to the Trustee). Failure of the
Issuer, on or before any such thirty-fifth day, to deliver any such Debt
Securities shall not constitute a default but shall constitute, on and as of
such date, the irrevocable election of the Issuer, and the Issuer shall
become unconditionally obligated, to pay in cash on the next succeeding
sinking fund payment date that portion of the mandatory sinking fund payment
due on such date that would have been satisfied by the delivery of such Debt
Securities.
Such written statement shall, except as provided in the next
preceding paragraph, be irrevocable and upon its receipt by the Trustee the
Issuer shall become unconditionally obligated to make all the cash payments
therein referred to, if any, on the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such forty-fifth day, to deliver such
written statement shall not constitute a default but shall constitute, in and as
of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Debt Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund
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payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Issuer shall so request) with
respect to the Debt Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the redemption of
Debt Securities of such series at the sinking fund redemption price together
with accrued interest to the date fixed for redemption. If such amount shall be
$50,000 or less and the Issuer makes no such request then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select, in
the manner provided in Section 12.02, for redemption on such sinking fund
payment date a sufficient principal amount of Debt Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Debt Securities of such
series (or portions thereof) so selected. Debt Securities of any series which
are (a) owned by the Issuer or an entity known by the Trustee to be directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, as shown by the Debt Security register, and
not known to the Trustee to have been pledged or hypothecated by the Issuer or
any such entity or (b) identified in an Officers' Certificate at least 30 days
prior to the sinking fund payment date as being beneficially owned by, and not
pledged or hypothecated by, the Issuer or an entity directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer shall be excluded from Debt Securities of such series eligible for
selection for redemption. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Debt Securities of such series to be
105
given in substantially the manner provided in Section 12.02 (and with the
effect provided in Section 12.03) for the redemption of Debt Securities of
such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated to the redemption of Debt
Securities of such series shall be added to the next cash sinking fund
payment for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund
monies held on the stated maturity date of the Debt Securities of any
particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Debt Securities of such
series shall be applied, together with other monies, if necessary, sufficient
for the purpose, to the payment of the principal of, and interest on, the
Debt Securities of such series at maturity.
On each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest
accrued to such sinking fund payment date on Debt Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Debt Securities of a series with sinking fund monies or mail any notice of
redemption of Debt Securities for such series by operation of the sinking
fund during the continuance of a default in payment of interest on such Debt
Securities or of any Event of Default except that, where the mailing of
notice of redemption of any Debt Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Debt Securities,
provided that it shall have received from the Issuer a sum sufficient for
such redemption. Except as aforesaid, any monies in the sinking fund for such
series at the time when any such default or Event of Default shall occur, and
any monies thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed
106
to have been collected under Article Five and held for the payment of all
such Debt Securities. In case such Event of Default shall have been waived as
provided in Section 5.10 or the default cured on or before the forty-fifth
day preceding the sinking fund payment date in any year, such monies shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Debt Securities.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 2.03 provision
is made for either or both of (a) defeasance of the Securities of a series under
Section 13.02 or (b) covenant defeasance of the Securities of a series under
Section 13.03, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article Thirteen, shall be
applicable to the Securities of such series, and the Issuer may at its option
elect at any time, with respect to the Debt Securities of such series, to have
either Section 13.02 (if applicable) or Section 13.03 (if applicable) be applied
to the outstanding Debt Securities of such series upon compliance with the
conditions set forth below in this Article Thirteen.
SECTION 13.02. DEFEASANCE AND DISCHARGE. Upon the Issuer's
exercise of the above option applicable to this Section, the Issuer shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Debt Securities of such series on and after the date the conditions
precedent set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Debt
Securities of such series and to have
107
satisfied all its other obligations under such Debt Securities and this
Indenture insofar as such Debt Securities are concerned (and the Trustee, at
the expense of the Issuer, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of Outstanding
Debt Securities of such series to receive, solely from the trust fund
described in Section 13.04 as more fully set forth in such section, payments
of the principal of (and premium, if any) and interest on such Debt
Securities when such payments are due, (b) the Issuer's obligations with
respect to such Debt Securities under Sections 2.08, 2.09, 2.11, 3.02, 3.04
and 6.05 and such obligations as shall be ancillary thereto, (c) the rights,
powers, trusts, duties, immunities and other provisions in respect of the
Trustee hereunder, (d) the Issuer's obligations with respect to a conversion
or exchange of Debt Securities and (e) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Issuer may exercise its option
under this Section 13.02 notwithstanding the prior exercise of its option
under Section 13.03 with respect to the Debt Securities of such series.
SECTION 13.03. COVENANT DEFEASANCE. Upon the Issuer's exercise
of the above option applicable to this Section, the Issuer shall be released
from its obligations under Section 3.06 (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Debt Securities of such series, the Issuer may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Debt Securities shall be unaffected
thereby.
108
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE. The following shall be the conditions precedent to the application
of either Section 13.02 or Section 13.03 to the Outstanding Debt Securities of
such series:
(a) the Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the holders of such Debt Securities, (i) monies in an
amount, or (ii) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, monies in an amount, or (iii) a combination thereof,
sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of and interest
on the outstanding Debt Securities of such series on the maturity of
such principal or interest. Before such a deposit the Issuer may make
arrangements satisfactory to the Trustee for the redemption of Debt
Securities at a future date or dates in accordance with Article Twelve,
which shall be given effect in applying the foregoing. For this
purpose, "U.S. Government Obligations" means securities that are (A)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (B) obligations of any
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the
109
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(b) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing
(i) on the date of such deposit or (ii) insofar as Subsections 5.01(g)
and 5.01(h) are concerned, at any time during the period ending on the
121st day after the date of such deposit or, if longer, ending on the
day following the expiration of the longest preference period
applicable to the Issuer in respect of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(c) Such defeasance or covenant defeasance shall not (i) cause
the Trustee for the Debt Securities to have a conflicting interest as
defined in Section 6.08 or for purposes of the Trust Indenture Act with
respect to any securities of the Issuer or (ii) result in the trust
arising from such deposit to constitute, unless
110
it is qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended.
(d) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Issuer is a party or
by which it is bound.
(e) In the case of an election under Section 13.02, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Issuer has received from the United States Internal Revenue
Service (the "IRS") a private letter ruling, (ii) there has been
published by the IRS a general revenue ruling, or (iii) since the date
of this Indenture there has been a change in the applicable Federal
income tax law or the interpretation thereof, in each case to the
effect that, and based thereon such opinion shall confirm that, the
holders of the Outstanding Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same time as would have
been the case if such defeasance had not occurred.
(f) In the case of an election under Section 13.03 or Section
13.04, the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Debt
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred.
111
(g) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed by the Issuer in connection therewith pursuant to
Section 2.01.
(h) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 13.02 or the covenant defeasance under Section 13.03 (as
the case may be) have been complied with.
SECTION 13.05. DEPOSITED MONIES AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the
provisions of Section 10.04, all monies and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee - collectively, for purposes of this Section 13.05, the "Trustee")
pursuant to Section 13.04 in respect of the Outstanding Debt Securities of such
series shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Debt Securities and this Indenture, to the payment, either
directly or through any paying agent (but not including the Issuer acting as its
own paying agent) as the Trustee may determine, to the Holders of such Debt
Securities, of all sums due and to become due thereon in respect of principal
and interest, but such monies need not be segregated from other funds except to
the extent required by law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the monies or U.S.
Government Obligations deposited pursuant to Section 13.04 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuer from time to
112
time upon the written request of the Issuer any monies or U.S. Government
Obligations held by it as provided in Section 13.04 which, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
SECTION 13.06. REINSTATEMENT. If the Trustee or the paying
agent is unable to apply any monies in accordance with Section 13.05 by reason
of any order or judgment or any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Issuer's
obligations under the Debt Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Thirteen
until such time as the Trustee or paying agent is permitted to apply all such
monies in accordance with Section 13.05; provided that, if the Issuer makes any
payment of principal of any such Debt Security following the reinstatement of
its obligations, the Issuer shall be subrogated to the rights of the Holders of
such Debt Securities to receive such payment from the monies held by the Trustee
or the paying agent.
113
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 September 15, 1997.
FINANCIAL SECURITY ASSURANCE
HOLDINGS LTD.
By: /s/ Robert P. Cochran
-----------------------
Name: Robert P. Cochran
Title: President
[CORPORATE SEAL]
Attest:
By: /s/ Bruce Stern
-----------------------
Secretary
FIRST UNION NATIONAL BANK
By: /s/ Shannon Stahel
------------------------
Name: Shannon Stahel
Title: Trust Officer
[CORPORATE SEAL]
Attest: /s/ Terry Baker
By Vice President
114
STATE OF New York )
)ss.:
COUNTY OF New York )
On this 15th day of September, before me personally came
Robert P. Cochran, to me personally known, who, being by me duly sworn, did
depose and say that he resides at 1000 Park Avenue, New York, NY; that he is
President of Financial Security Assurance Holdings Ltd., one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
/s/ Richard J. Bauerfield
----------------------------------
Notary Public
Exhibit
(Form 1)
[FORM OF FACE OF NOTE]
No. $
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
% NOTE DUE
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD., a New York
corporation (the "Issuer"), for value received, hereby promises to pay to or
registered assigns, at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, the principal sum of
Dollars on , , in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on
and of each year, commencing , , on said principal sum at said
office or agency, in like coin or currency, at the rate per annum specified in
the title of this Note, from the
or the , as the case may be, next preceding the date of this
Note to which interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of this Note, or unless no
interest has been paid on these Notes, in which case from , , until payment of
said principal sum has been made or duly provided for; PROVIDED, that payment of
interest may be made at the option of the Issuer by check mailed to the address
of the person entitled thereto as such address shall appear on the security
register. Notwithstanding the foregoing, if the date hereof is after the day of
or , as the case may be, and before the following or this Note
shall bear interest from such or ; PROVIDED, that if the Issuer shall default in
the payment of interest due on such or , then this Note shall bear interest from
the next preceding or , to which interest has been paid
2
or, if no interest has been paid on these Notes, from . The
interest so payable on any or , will, subject to certain exceptions provided
in the Indenture referred to on the reverse hereof, be paid to the person in
whose name this Note is registered at the close of business on the or , as
the case may be, next preceding such or .
Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Financial Security Assurance Holdings Ltd.
has caused this instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed hereunto
or imprinted hereon.
Dated:
FINANCIAL SECURITY ASSURANCE
HOLDINGS LTD.
By
By
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
3
This is one of the Debentures of the series designated
herein referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as
Trustee
By
Authorized Officer
[FORM OF REVERSE OF NOTE]
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
% NOTE DUE
This Note is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Debentures") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of ,
(herein called the "Indenture"), duly executed and delivered by the Issuer
to , Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Issuer and the holders of the Debentures. The Debentures may
be issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This Note is one of a
series designated as the % Notes Due of the Issuer, limited in aggregate
principal amount to $ .
In case an Event of Default with respect to the % Notes Due
, as defined in the Indenture, shall have occurred and be continuing, the
principal hereof may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of more than 50% in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute
2
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the Holders of the
Debentures of each such series; PROVIDED, HOWEVER, that no such supplemental
indenture shall (i) extend the final maturity of any Debenture, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of any interest thereon, or impair or affect the
rights of any Holder to institute suit for the payment thereof, without the
consent of the Holder of each Debenture so affected, (ii) reduce the aforesaid
percentage of Debentures, the Holders of which are required to consent to any
such supplemental indenture or (iii) modify any provision relating to the
subordination of Outstanding Debt Securities of any series in a manner adverse
to the Holders thereof, without the consent of the Holder of each Debenture
affected. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Debentures of any series, prior to
any declaration accelerating the maturity of such Debentures, the Holders of a
majority in aggregate principal amount Outstanding of the Debentures of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Debentures) may on behalf of the Holders of all the Debentures of
such series (or all or certain series of the Debentures, as the case may be)
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Debentures. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and
3
unconditional, to pay the principal of and any premium and interest on this
Note in the manner, at the respective times, at the rate and in the coin or
currency herein prescribed.
The Notes are issuable in registered form without coupons
in denominations of $ and any multiple of $
at the office or agency of the Issuer in the Borough of Manhattan, The City
of New York, and in the manner and subject to the limitations provided in the
Indenture, but without the payment of any service charge, notes may be
exchanged for a like aggregate principal amount of Notes of other authorized
denominations.
The Notes may be redeemed at the option of the Issuer as a
whole, or from time to time in part, on any date after and prior
to maturity, upon mailing a notice of such redemption not less than 30 nor
more than 45 days prior to the date fixed for redemption to the Holders of
Notes at their last registered addresses, all as further provided in the
Indenture, at the following redemption prices (expressed in percentages of
the principal amount) together in each case with accrued interest to the date
fixed for redemption:
If redeemed during the twelve-month period beginning
YEAR PERCENTAGE YEAR PERCENTAGE
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, a new Note or Notes of authorized denominations for an equal aggregate
3
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
Exhibit
(Form 2)
[FORM OF FACE OF DEBENTURE]
No. $
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
% DEBENTURE DUE
Financial Security Assurance Holdings Ltd., a New York
corporation (the "Issuer"), for value received, hereby promises to pay to or
registered assigns, at the office or agency of the Issuer in the Borough of
Manhattan, the City of New York, the principal sum of
Dollars on , , in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on and of each year,
commencing , , on said principal sum at said office or agency, in like coin
or currency, at the rate per annum specified in the title of this Debenture,
from the or the , as the case may be, next preceding the date of
this Debenture to which interest has been paid, unless the date hereof is a
date to which interest has been paid, in which case from the date of this
Debenture, or unless no interest has been paid on these Debentures, in which
case from , until payment of said principal sum has been made or duly
provided for; PROVIDED, that payment of interest may be made at the option of
the Issuer by check mailed to the address of the person entitled thereto as
such address shall appear on the security register. Notwithstanding the
foregoing, if the date hereof is after the day of or , as the
case may be, and before the following or , this
Debenture shall bear interest from such or ; PROVIDED, that if the Issuer
shall default in the payment of interest due on such or , then this Debenture
shall bear interest from the next preceding or , to which
2
interest has been paid or, if no interest has been paid on these Debentures,
from . The interest so payable on any or will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Debenture is registered at the close of business on
the or , as the case may be, next preceding such
or .
Reference is made to the further provisions of this Debenture
set forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Financial Security Assurance Holdings Ltd.
has caused this instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed hereunto
or imprinted hereon.
Dated:
FINANCIAL SECURITY ASSURANCE
HOLDINGS LTD.
By
By
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
3
This one of the Debentures of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as
Trustee
By
Authorized Officer
[FORM OF REVERSE OF DEBENTURE]
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
% DEBENTURE DUE
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the issuer
(hereinafter called the "Debentures") of the series hereinafter specified, all
issued or to be issued under and pursuant to a indenture dated (herein called
the "Indenture"), duly executed and delivered by the Issuer to , Trustee (herein
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Issuer
and the Holders of the Debentures. The Debentures may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any) may be subject
to different sinking, purchase or analogous funds (if any) and may otherwise
vary as in the Indenture provided. This Debenture is one of a series designated
as the % Debentures Due of the Issuer, limited in aggregate principal amount to
$ .
In case an Event of Default with respect to the [ ]%
Debentures Due, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of more than 50% in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute
2
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the Holders of the
Debentures of each such series; PROVIDED, HOWEVER, that no such supplemental
indenture shall (i) extend the final maturity of any Debenture, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of any interest thereon, or impair or affect the
rights of any Holder to institute suit for the payment thereof, without the
consent of the Holder of each Debenture so affected, (ii) reduce the aforesaid
percentage of Debentures, the Holders of which are required to consent to any
such supplemental indenture or (iii) modify any provision relating to the
subordination of Outstanding Debt Securities of any series in a manner adverse
to the Holders thereof , without the consent of the Holder of each Debenture
affected. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Debentures of any series, prior to
any declaration accelerating the maturity of such Debentures, the Holders of a
majority in aggregate principal amount Outstanding of the Debentures of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Debentures) may on behalf of the Holders of all the Debentures of
such series (or all or certain series of the Debentures, as the case may be)
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Debentures. Any such
consent or waiver by the Holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and any Debentures which may be
issued in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter
3
or impair the obligation of the Issuer, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Debenture in the
manner, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Debentures are issuable in registered form without coupons
in denominations of $ and any multiple of $ at the office or agency of the
Issuer in the Borough of Manhattan, The City of New York, and in the manner and
subject to the limitations provided in the Indenture, but without the payment of
any service charge, Debentures may be exchanged for a like aggregate principal
amount of Debentures of other authorized denominations.
The Debentures may be redeemed at the option of the Issuer,
as a whole, or from time to time in part, on any date after and
prior to maturity, upon mailing a notice of such redemption not less than 30
nor more than 45 days prior to the date fixed for redemption to the Holders
of Debentures at their last registered addresses, all as further provided in
the Indenture, at the following optional redemption prices (expressed in
percentages of the principal amount) together in each case with accrued
interest to the date fixed for redemption:
If redeemed during the twelve-month period beginning ,
YEAR PERCENTAGE YEAR PERCENTAGE
[PROVIDED, HOWEVER, that no such optional redemption may be effected prior to
directly or indirectly from or in anticipation of monies borrowed
by or for the account of the Issuer at an interest cost (calculated in
4
accordance with generally accepted financial practice) of less than % per
annum.]
[The Debentures are also subject to redemption, through the
operations of the sinking fund as herein provided on and on each
thereafter to and including on notice as set forth above and at 100% of the
principal amount thereof (the sinking fund redemption price), together with
accrued interest to the date fixed for redemption.
As and for a sinking fund for the retirement of the
Debentures and so long as any of the Debentures remain outstanding and
unpaid, the Issuer will pay to the Trustee in cash (subject to the right to
deliver certain Debentures in credit therefor as in the Indenture provided),
on or before and on or before in each year thereafter to
and including an amount sufficient to redeem $ principal amount of the
Debentures (or such lesser amount equal to the principal amount then
Outstanding) at the sinking fund redemption price.
At its option the Issuer may pay into the sinking fund for the
retirement of Debentures, in cash except as provided in the Indenture, on or
before and on or before in each year thereafter to and including
, an amount sufficient to redeem an additional principal amount
of Debentures up to but not to exceed $ at the sinking fund redemption price. To
the extent that the right to such optional sinking fund payment is not exercised
in any year, it shall not be cumulative or carried forward to any subsequent
year.]
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Issuer in the Borough of Manhattan, The
City of New York, a new Debenture or Debentures of authorized denominations for
an equal aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations
5
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder hereof as the
absolute owner of this Debenture (whether or not this Debenture shall be
overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the
face hereof, interest hereon, and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental
thereto or in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, of the Issuer or of any successor corporation,
either directly or through the Issuer or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
Exhibit
(Form 3)
[FORM OF FACE OF]
No. $
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
% [ ] DUE
Financial Security Assurance Holdings Ltd., a New York
corporation (the "Issuer"), for value received, hereby promises to pay to or
registered assigns, at the office or agency of the Issuer in the Borough of
Manhattan, the City of New York, the principal sum of Dollars on , in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest, semiannually on and in each year, commencing
, , on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this [ ], from the
or the , as the case may be, next preceding the date of this [ ] to which
interest has been paid, unless the date hereof is a date to which interest
has been paid, in which case from the date of this [ ], or unless no interest
has been paid on these [ ]s, in which case from , until payment of said
principal sum has been made or duly provided for; PROVIDED, that payment of
interest may be made at the option of the Issuer by check mailed to the
address of the person entitled thereto as such address shall appear on the
security register. Notwithstanding the foregoing, if the date hereof is after
the day of or , as the case may be, and before the following
or , this [ ] shall bear interest from such or;
PROVIDED, that if the Issuer shall default in the payment of interest due on
such or , then this [ ] shall bear interest
2
from the next preceding or , to which interest has been paid or , if no
interest has been paid on these [ ]s, from . The interest so
payable on any or will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this [ ] is registered at the close of business on or ,
as the case may be, next preceding such or .
Reference is made to the further provisions of this [ ] set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This [ ] shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Financial Security Assurance Holdings Ltd.
has caused this instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed hereunto
or imprinted hereon.
Dated: ,
FINANCIAL SECURITY ASSURANCE
HOLDINGS LTD.
By
By
3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as
Trustee
By
Authorized Officer
[FORM OF REVERSE OF ]
FOR PURPOSES OF SECTION 1232 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS [ ] IS % OF ITS
PRINCIPAL AMOUNT AND THE ISSUE DATE IS , .
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
% [ ] DUE
This [ ] is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Debentures") of the series hereinafter specified, all issued or
to be issued under and pursuant to an indenture dated as of (herein called
the "Indenture"), duly executed and delivered by the Issuer to
, Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the Holders of the Debentures. The
Debentures may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the Indenture
provided. This [ ] is one of a series designated as the % [ ] Due
of the Issuer, limited in aggregate principal amount to $ .
In case an Event of Default with respect to [ ], as defined in
the Indenture, shall have
2
occurred and be continuing, (i) that portion of the principal equal to the
initial public offering price of this [ ] plus accrued amortization of the
original issue discount calculated using the "interest" method (computed in
accordance with generally accepted accounting principles in effect on the
date of the Indenture) from , to the date of acceleration and (ii)
any accrued interest to the date of acceleration may be declared, and upon
such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of more than 50% in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Debentures of each such series to be affected; provided,
however, that no such supplemental indenture shall (i) extend the final maturity
of any Debenture, or reduce the rate or extend the time of payment of any
interest thereon, or reduce the principal amount thereof, or reduce the amount
of the principal of an Original Issue Discount Debenture that would be due and
payable upon acceleration of the maturity thereof or the amount provable in
bankruptcy or impair or affect the rights of any Holder to institute suit for
the payment thereof, without the consent of the Holder of each Debenture so
affected, (ii) reduce the aforesaid percentage of Debentures, the Holders of
which are required to consent to any such supplemental indenture or (iii) modify
any provision relating to the subordination of Outstanding Debt Securities of
any series in a manner adverse to the Holders thereof, without the consent of
the Holder of each Debenture affected. It is also provided in the Indenture
that, with respect to certain defaults or Events of Default regarding the
Debentures of any series, prior to any declaration
3
accelerating the maturity of such Debentures, the Holders of a majority in
aggregate principal amount Outstanding of the Debentures of such series (or,
in the case of certain defaults or Events of Default, all or certain series
of the Debentures) may on behalf of the Holders of all the Debentures of such
series (or all or certain series of the Debentures, as the case may be) waive
any such past default or Event of Default. The preceding sentence shall not,
however, apply to a default in the payment of the principal of, or interest,
if any, on any of the Debentures. Any such consent or waiver by the Holder of
this [ ] (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and owners of this
[ ] and any [ ]s which may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this [ ] or
such other [ ]s.
No reference herein to the Indenture and no provision of this
[ ] or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this [ ] in the manner, at the respective times, at the rate and in the coin or
currency herein prescribed.
The [ ]s are issuable in registered form without coupons in
denominations of $ and any multiple of $ at the office or agency of the Issuer
in the Borough of Manhattan, The City of New York, and in the manner and subject
to the limitations provided in the Indenture, but without the payment of any
service charge, [ ]s may be exchanged for a like aggregate principal amount of [
]s of other authorized denominations.
The [ ] may be redeemed at the option of the Issuer, as a
whole, or from time to time in part, on any date prior to maturity, upon mailing
of notice of such redemption not less than 30 nor more than 45 days prior to the
date fixed for redemption to the Holders of
4
[ ]s at their last registered addresses, all as further provided in the
Indenture, at the redemption price of 100% of the principal amount thereof
together with accrued interest to the date fixed for redemption.
Upon due presentment for registration of transfer of this [ ]
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, a new [ ] or [ ]s of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this [ ](whether or not this [ ] shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof, and subject to the
provisions on the face hereof, interest hereon, and for all other purposes, and
neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the
Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental thereto
or in any [ ], or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
5
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
Exhibit
(Form 4)
[FORM OF FACE OF ZERO COUPON SECURITY]
No. $
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
ZERO COUPON [ ]
Financial Security Assurance Holdings Ltd., a New York
corporation (the "Issuer"), for value received, hereby promises to pay to
or registered assigns, at the office or agency of the Issuer in the
Borough of Manhattan, The City of New York, the principal sum of
Dollars on , , in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts. The principal of this [ ] shall not bear interest,
except in the case of default in payment of principal upon acceleration,
redemption or maturity, and in such case the amount in default shall bear
interest at the rate of % per annum (to the extent enforceable under
applicable law) from the date of default in payment to the date such payment
has been made or duly provided for, at said office or agency and in like coin
or currency.
Reference is made to the further provisions of this [ ] set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This [ ] shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
2
IN WITNESS WHEREOF, Financial Security Assurance Holdings Ltd.
has caused this instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed hereunto
or imprinted hereon.
Dated: ,
FINANCIAL SECURITY ASSURANCE
HOLDINGS LTD.
By
By
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as
Trustee
By
Authorized Officer
3
[FORM OF REVERSE OF ]
FOR THE PURPOSES OF SECTION 1232 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS [ ] IS % OF ITS
PRINCIPAL AMOUNT AND THE ISSUE DATE IS , .
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
ZERO COUPON [ ] DUE
This [ ] is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Debentures") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of (herein called the
"Indenture"), duly executed and delivered by the Issuer to , Trustee (herein
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Issuer
and the holders of the Debentures. The Debentures may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as in the Indenture provided. This [ ] is one of a series
designated as the Zero Coupon [ ] Due of the Issuer, limited in aggregate
principal amount to $ .
In case an Event of Default with respect to the Zero Coupon [
], as defined in the Indenture, shall have occurred and be continuing, (i) that
portion of
4
the principal equal to the initial public offering price of this [ ]
plus accrued amortization of the original issue discount calculated using the
"interest" method (computed in accordance with generally accepted accounting
principles in effect on the date of the Indenture) from
, to the date of acceleration may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of more than 50% in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Debentures of each such series; PROVIDED, HOWEVER, that no
such supplemental indenture shall (i) extend the final maturity of any
Debenture, or reduce the rate or extend the time of payment of interest thereon,
or reduce the principal amount thereof, or reduce the amount of the principal of
an Original Issue Discount Debenture that would be due and payable upon
acceleration or provable in bankruptcy or impair or affect the rights of any
Holder to institute suit for the payment thereof, without the consent of the
Holder of each Debenture so affected, (ii) reduce the aforesaid percentage of
Debentures, the Holders of which are required to consent to any such
supplemental indenture or (iii) modify any provision relating to the
subordination of Outstanding Debt Securities of any series in a manner adverse
to the Holders thereof, without the consent of the Holder of each Debenture
affected. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Debentures of any series, prior to
any declaration accelerating the maturity of the Debentures of any series, the
Holders of a majority in aggregate principal amount Outstanding of the
Debentures of
5
such series (or, in the case of certain defaults or Events of Default, all or
certain series of the Debentures) may on behalf of the Holders of all the
Debentures of such series (or all or certain series of the Debentures, as the
case may be) waive any such past default or Event of Default and its
consequences. The preceding sentence shall not, however, apply to a default
in the payment of the principal of, or interest, if any, on any of the
Debentures. Any such consent or waiver by the Holder of this [ ] (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this [ ] and any [ ]
which may be issued in exchange or substitution herefor, irrespective of
whether or not any notation thereof is made upon this [ ] or such other [ ].
No reference herein to the Indenture and no provision of
this [ ] or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of
and interest, if any, on this [ ] in the manner, at the respective times, at
the rate and in the coin or currency herein prescribed.
The [ ] are issuable in registered form without coupons in
denominations of $ or any multiple of $ at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the payment of any
service charge, [ ] may be exchanged for a like aggregate principal amount of [
] of other authorized denominations.
The [ ] may be redeemed at the option of the Issuer, as a
whole, or from time to time in part, on any date prior to maturity, upon mailing
a notice of such redemption to the holders of [ ] at their last registered
addresses, all as further provided in the
6
Indenture, at the redemption price of 100% of the principal amount thereof.
Upon due presentment for registration of transfer of this
[ ]at the office or agency of the Issuer in the Borough of Manhattan, The
City of New York, a new [ ] or [ ] of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without
charge except for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this [ ](whether or not this [ ] shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of receiving
payment hereof, or on account hereof, and for all other purposes, and neither
the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental thereto
or in any [ ], or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
7
Exhibit
(Form 5)
[FORM OF FACE OF EXTENDIBLE NOTE]
No. $
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
- YEAR EXTENDIBLE NOTE
Financial Security Assurance Holdings Ltd., a New York
corporation (the "Issuer"), for value received, hereby promises to pay to
or registered assigns, at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, the principal sum of
Dollars on , , in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest, (at the rate
per annum from time to time in effect as described below) semiannually on and
of each year, commencing , on said principal sum at said office or
agency, in like coin or currency, from the or the , as the case may be, next
preceding the date of this Note to which interest has been paid, unless the
date hereof is a date to which interest has been paid, in which case from the
date of this Note, or unless no interest has been paid on these Notes, in
which case from , , until payment of said principal sum has been
made or duly provided; provided, however, that payment of interest may be
made at the option of the Issuer by check mailed to the address of the person
entitled thereto as such address shall appear on the security register.
Notwithstanding the foregoing, if the date hereof is after the day of or , as
the case may be, and before the following or , this Note bear interest from
such or ; provided, however, that if the Issuer shall default in the payment
of interest due on such or , then this Note shall bear interest from the next
preceding or , to which interest has been paid
2
or, if no interest has been paid on these Notes, from . The
interest so payable on any or , will, subject to
certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Note is registered at the
close of business on such or , as the case may be, next preceding such or .
Interest on these Notes is payable at the rate of % per
annum from through , and for each month period
beginning , and , at a rate per annum established
by the Issuer on the preceding each such , or at a rate per annum determined
by a method established by the Issuer on the preceding each such . The Issuer
shall establish the interest rate or method to be used to determine such
interest rate by delivery to the Trustee of an Officers' Certificate on such
. On or before the prior to the commencement of the -month period to
which it applies, the Trustee shall cause notice of such interest rate or the
method to be used in ascertaining the interest rate on the following
and the interest rate that would have been applicable to such -month
period had such determination been made as of such , all as specified in the
aforesaid Officers' Certificate, to be mailed to each holder of these Notes.
The Issuer shall cause notice of the interest rate established as of the
preceding the commencement of the -month period to be enclosed with the
interest payment checks mailed to the Holders of the Notes for the period
ending on the following such .
The Notes of this series are subject to repayment on , ,
and , at the option of the Holders thereof exercisable on or before the
, but not prior to the preceding such , at a
repayment price equal to the principal amount thereof to be repaid, together
with interest payable thereon to the repayment date, as described on the
reverse side hereof.
3
Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Financial Security Assurance Holdings
Ltd. has caused this instrument to be signed by facsimile by its duly
authorized officers and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated: ,
FINANCIAL SECURITY ASSURANCE
HOLDINGS LTD.
By
By
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as
Trustee
By
Authorized Officer
4
5
[FORM OF REVERSE OF - YEAR EXTENDIBLE NOTE]
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
-Year Extendible Note
This Note is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (the
"Debentures") of the series hereinafter specified, all issued or to be issued
under an indenture dated as of (herein called the
"Indenture"), duly executed and delivered by the Issuer to ,
Trustee (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Issuer and the holders of the Debentures. The Debentures
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any) and may otherwise vary as in the Indenture provided.
This Note is one of a series designated as the -Year
Extendible Notes of the Issuer, limited in aggregate principal amount to $
.
[The -Year Extendible Notes may be redeemed at the option of
the Issuer as a whole or in part, or from time to time in part, on any date
(i) on or after , and prior to , , (ii) on or after , , and prior
to , (iii) on or after , , and prior to , and (iv) on or after ,
and prior to maturity upon mailing a notice of such redemption not less than
30 nor more than 45 days prior to the date fixed for redemption to the
Holders of Notes at their last registered addresses, all as further provided
in the Indenture at 100%
6
of the principal amount thereof, together with accrued interest to the date
fixed for redemption. If this Note is redeemed in part, the principal amount
that remains Outstanding shall not be less than $ .]
In case an Event of Default with respect to the
- -Year Extendible Notes, as defined in the Indenture, shall have occurred and
be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of more than 50% in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one class), evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in any manner
the rights of the Holders of the Debentures of each such series; provided,
however, that no such supplemental indenture shall (i) extend the final
maturity of any Debenture, or reduce the rate or extend the time of payment
of any interest thereon or impair or affect the rights of any Holder to
institute suit for the payment thereof or reduce the principal amount thereof
or any premium thereon, or, in the case of the -Year
Extendible Notes, adversely affect the right to repayment at the option of
the Holder of said Notes, without the consent of the Holder of each Debenture
so affected, (ii) reduce the aforesaid percentage of Debentures, the Holders
of which are required to consent to any such supplemental indenture or (iii)
modify any provision relating to the subordination of Outstanding Debt
Securities of any series in a manner adverse to the Holders thereof, without
the consent of the Holder of each Debenture affected. It is also provided in
the Indenture that, with respect to certain defaults or Events of Default
regarding the Debentures of any series,
7
prior to any declaration accelerating the maturity of such Debentures, the
Holders of a majority in aggregate principal amount Outstanding of the
Debentures of such series (or, in the case of certain defaults or Events of
Default, all or certain series of the Debentures) may on behalf of the
Holders of all the Debentures of such series (or all or certain series of the
Debentures, as the case may be) waive any such past default or Event of
Default. The preceding sentence shall not, however, apply to a default in the
payment of the principal of or premium, if any, or interest, on any of the
Debentures. Any such consent or waiver by the Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Note and any
-Year Extendible Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other -Year Extendible Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note in the manner, at the respective times, at the
rate and in the coin or currency herein prescribed.
The -Year Extendible Notes are subject to
repayment in whole, or in part, on , , and , in
increments of $ or multiples of $ in excess of $ provided that the portion of
the principal amount of any -Year Extendible Note not being repaid shall be
at least $ , at the option of the Holders thereof at a repayment price equal
to the principal amount thereof to be repaid, together with interest payable
thereon to the repayment date. For this Note to be repaid at the option of
the Holder, the Issuer must receive at its office or agency in the Borough of
Manhattan, The City of New York, on or before the , or, if such is not a
Business Day, the next succeeding Business Day, but not earlier than the
8
prior to the on which the repayment price will be paid (i) this
Note, with the form entitled "Option to Elect Repayment" below duly
completed, or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of the Note, the
principal amount of the Note, the amount of such Note to be repaid, a
statement that the option to elect repayment is being made thereby and a
guarantee that the Note to be repaid with the form entitled "Option to Elect
Repayment" on the reverse thereof duly completed will be received by the
Issuer no later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter, and such Note and form duly
completed are received by the Issuer by such fifth Business Day. Either form
of notice duly received on or before the preceding any such shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Notes for repayment will be determined by the
Issuer, whose determination shall be final and binding.
The -Year Extendible Notes are issuable in
registered form without coupons in denominations of $ and any multiple of $
at the office or agency of the Issuer in the Borough of Manhattan, The City
of New York, and in the manner and subject to the limitations provided in the
Indenture, but without the payment of any service charge, -Year
Extendible Notes may be exchanged for a like aggregate principal amount of
-Year Extendible Notes of other authorized denominations.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and
9
subject to the provisions on the face hereof, interest hereon and for all
other purposes, and neither the Issuer nor the Trustee nor any authorized
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental
thereto or in any -Year Extendible Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, of the Issuer or of
any successor corporation, either directly or through the Issuer or any
successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
[FORM OF OPTION TO ELECT REPAYMENT]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Issuer to repay the within Note (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the repayment date, to the undersigned, at
(Please Print or Typewrite Name and Address of the Undersigned)
FOR THIS NOTE TO BE REPAID THE ISSUER MUST RECEIVE AT ITS
OFFICE OR AGENCY IN THE BOROUGH OF MANHATTAN, THE CITY AND STATE OF NEW YORK,
OR AT SUCH ADDITIONAL PLACE OR PLACES OF WHICH THE ISSUER SHALL FROM TIME TO
TIME NOTIFY THE HOLDER OF THE WITHIN NOTE, ON OR BEFORE THE OR, IF SUCH IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY, BUT NOT EARLIER THAN
THE PRIOR TO , , AND , (I) THIS NOTE WITH THIS
"OPTION TO ELECT REPAYMENT" FORM DULY COMPLETED OR (II) A TELEGRAM, TELEX,
FACSIMILE TRANSMISSION OR LETTER FROM A MEMBER OF A NATIONAL SECURITIES
EXCHANGE OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR A
COMMERCIAL BANK OR A TRUST COMPANY IN THE UNITED STATES OF AMERICA SETTING
FORTH THE NAME OF THE HOLDER OF THE NOTE, THE PRINCIPAL AMOUNT OF THE NOTE,
THE AMOUNT OF THE NOTE TO REPAID, A STATEMENT THAT THE OPTION TO ELECT
REPAYMENT IS BEING MADE THEREBY AND A GUARANTEE THAT THE NOTE TO BE REPAID
WITH THE FORM ENTITLED "OPTION TO ELECT REPAYMENT" ON THE REVERSE OF THE NOTE
DULY COMPLETED WILL BE RECEIVED BY THE ISSUER NOT LATER THAN FIVE BUSINESS
DAYS AFTER THE DATE OF SUCH TELEGRAM, TELEX, FACSIMILE TRANSMISSION OR
LETTER, AND SUCH NOTE AND FORM DULY COMPLETED ARE RECEIVED BY THE ISSUER BY
SUCH FIFTH BUSINESS DAY.
If less than the entire principal amount of the within Note
is to be repaid, specify the portion thereof
2
(which shall be $ or an integral multiple of $ in
excess of $ ) which the Holder elects to have repaid: $
; and specify the denomination or denominations (which shall be $
or multiple of $ in excess of $ ) of the
- -Year.
Extendible Note or Notes to be issued to the Holder for the
portion of the within Note not being repaid (in the absence of such
specification, one such Note will be issued for the portion not being
repaid); $ .
Dated:
Note: The signature to this Option to
Elect Repayment must correspond with
the name as written upon the face of
the Note in every particular without
alteration or enlargement or any other
change whatsoever.